Exhibit 10(b)(7)
METRO COMMERCE BANK
TRIPLE NET LEASE
000 XXXXXXXX XXXXXX
XXX XXXXXXXXX, XX
TABLE OF CONTENTS
1. SALIENT LEASE TERMS 1
2. DEFINITIONS 3
3. PREMISES 10
4. TERM 12
5. PRE-TERM POSSESSION 14
6. DELAY IN DELIVERY OF POSSESSION 15
7. MINIMUM RENT 15
8. ADDITIONAL RENT 15
9. ACCORD AND SATISFACTION 18
10. SECURITY DEPOSIT 18
11. USE 19
12. COMPLIANCE WITH LAWS AND REGULATIONS 20
13. SERVICE AND EQUIPMENT 27
14. WASTE 29
15. ALTERATIONS 29
16. PROPERTY INSURANCE 31
17. INDEMNIFICATION, WAIVER OF CLAIMS AND SUBROGATION 32
18. LIABILITY INSURANCE 34
19. INSURANCE POLICY REQUIREMENTS 34
20. LESSEE INSURANCE DEFAULT 35
21. FORFEITURE OF PROPERTY AND LESSOR'S LIEN 35
22. MAINTENANCE AND REPAIRS 35
23. DESTRUCTION 37
24. CONDEMNATION 38
25. ASSIGNMENT AND SUBLETTING 40
26. ABANDONMENT 44
27. ENTRY BY LESSOR 44
28. SIGNS 44
29. DEFAULT 45
30. REMEDIES UPON DEFAULT 45
31. BANKRUPTCY 48
32. SURRENDER OF LEASE 51
33. LESSOR'S EXCULPATION 51
34. ATTORNEYS' FEES 52
35. NOTICES 52
36. SUBORDINATION 53
37. ESTOPPEL CERTIFICATES. 54
38. WAIVER 54
39. HOLDING OVER 55
40. SUCCESSORS AND ASSIGNS 55
41. TIME 55
42. EFFECT OF LESSOR'S CONVEYANCE 55
43. COMMON AREAS 55
44. TRANSFER OF SECURITY 56
45. LATE CHARGES 56
46. CORPORATE AUTHORITY 56
47. MORTGAGEE PROTECTION 56
48. MISCELLANEOUS PROVISIONS 57
49. WAIVER OF CALIFORNIA CODE SECTIONS 59
50. SHUTTLE SERVICE 60
THIS LEASE is dated for reference purposes only this 17th day of December, 1999.
1. SALIENT LEASE TERMS
1.1 Rent Payment: ZORO, LLC
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn.: Building Management Office
Fax No.: (000) 000-0000
1.2 Parties and Notice Lessor: ZORO, LLC,
Address: a California limited liability company
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn.: Building Management Office
Fax No.: (000) 000-0000
Lessee: METRO COMMERCE BANK,
a California Corporation
(if more than one party, then the obligations
hereunder shall be joint and several.)
Until commencement of the Term:
METRO COMMERCE BANK
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
After commencement of the Term, Notices shall
be sent to Lessee at the Leased Premises.
(Section 35.1)
1.3 Premises: (A) Name and Location of Complex:
Townsend Center
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
(B) Leased Premises: Ground Floor- (a portion
of the ground floor space with entry to
lobby)
Usable Area: 2,975 square feet
Rentable Area: 3,570 square feet
1.4 Term: (A) Estimated Delivery Date: January 1, 2000
(B) Initial Term: Ten (10) years from
Commencement Date
(C) Renewal Term; Number: Two (2) successive
five (5) year terms
(Section 4.1)
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1.5 Rent: (A) Minimum Rent:
Annual Rental Monthly Rental
------------- --------------
Years 1-5 $107,100 $ 8,925.00
Years 6-10 $140,625 $11,718.75
First and Second Renewal Terms at Fair Market
Rental
(Section 7.1)
(B) Advance Rent:
Eight Thousand Nine Hundred Twenty-Five
Dollars ($8,925)
(Section 7.2)
(C) ATM Rent in addition to Minimum Rent:
Years During Term Annual Rent Monthly Rent
----------------- ----------- ------------
Years 1-5 $12,000 $1,000
Years 6-10 $15,000 $1,250
First Renewal Term $20,000 $1,667
Second Renewal Term $25,000 $2,083
1.6 Security Deposit: Twenty Thousand Six Hundred Forty-Three and
75/xx Dollars
($20,643.75)
(Section 10.1)
1.7 Use: Retail, banking, and office use
(Section 11.1)
1.8 Initial Pro Rata 0.53% (3,570/672,788 rsf)
Percent: (Section 2.1)
(Section 16.3)
1.9 Base Operating (A) Base Operating Cost Year: 2000
Cost for the (B) Base Tax Year: 1999-2000
Complex: (Section 8.2)
(Section 16.3)
1.10 Real Estate Xxxxxxx & Xxxxxxxxx of California, Inc. and
Brokers: Xxxxxxxxx Properties (Lessor's Brokers)
Xxxxx & Xxxxx (Lessee's Broker)
(Section 48.14)
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1.11 Rentable Area of 672,788 square feet
Building at
Commencement:
1.12 Parking Two (2) stalls
1.13 Contents: This Lease consists of.
Pages 1 through 61
Sections 1 through 50
Addenda (if any)
Exhibits:
A - Legal Description of Complex
B - Plan of the Complex
C - Floor Plan of the Leased Premises
D - Work Letter Agreement
E - Acknowledgment of Commencement
F - Rules and Regulations
G - Building Standards
H - Janitorial Specifications
I - Subordination Agreement
J - Letter of Credit Terms
K - Sign Exhibit
L - Estoppel Certificate
2. DEFINITIONS
2.1 The terms defined in this Article 2 shall, for all purposes of this
Lease and all agreements supplemental hereto, have the meanings herein specified
unless expressly stated otherwise.
"Alterations" Means any alterations, additions, improvements or
installations performed by Lessee after the Commencement Date.
"Atrium" means the central Atrium on floors 2 through 6 of the
Building so identified on Exhibits B and C, if applicable.
"Base Building Work" is defined in the Work Letter Agreement, attached
hereto as Exhibit D.
"Base 0perating Cost" means the sum of the costs for Base Operating
Costs and Taxes for the years specified in Section 1.9 hereof.
"BOMA" means the standards of measurement adopted by the Building
Owners and Managers Association, American National Standard, ANSI/BOMA 2.65.1 -
1996 ("BOMA") as modified by Lessor for uniform use in the Complex.
"Building" shall mean the structure which contains the Leased
Premises.
"Building Standards" shall mean Lessor's standard specifications for
construction in the Building as set forth in Exhibit G, attached hereto, and as
may be established by Lessor from time to time.
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"Commencement Date" shall mean the earlier of the following dates:
(i) The day upon which Lessee opens for business in the Leased
Premises; or
(ii) The date upon which the Tenant Improvements, including the
Lessee's Work (as herein defined), have been substantially completed as
determined by Lessor's project architect; or
(iii) Ninety (90) days following the Delivery Date (as herein
defined).
"Common Areas" shall mean all areas and facilities outside the Leased
Premises within the exterior boundaries of the Complex of which the Leased
Premises form a part, that are provided and designated by Lessor from time to
time for the general use and convenience of Lessee and of other tenants of
Lessor having the common use of such areas, and their respective authorized
representatives and invitees. Common Areas include, without limitation,
corridors, stairways, elevator shafts, janitor rooms, driveways, parking areas,
and landscaped areas all as generally described on Exhibit B, attached hereto.
Exhibit B is tentative and Lessor reserves the right to make alterations thereto
from time to time. Other areas may be designated by Lessor from time to time as
for the exclusive use of certain lessees and shall cease being Common Areas.
"Complex" is the real property of which the Leased Premises forms a
part, including, but not limited to, the Building, parking facility and
landscaping, which property is described with particularity in Exhibit A,
attached hereto and made a part hereof by reference.
"Delivery Date" shall mean the earlier of the following dates: (i) the
date upon which Lessee takes possession of the Leased Premises (provided
possession shall not mean Lessee's possession of and entry to the Leased
Premises for the purpose set forth in Section 5. 1), or (ii) the date upon which
Lessor's Work with respect to the Leased Premises has been substantially
completed in accordance with Exhibit D; provided, however, in the event
completion of Lessor's Work is delayed by Lessee's Work or other acts of Lessee
or its agents ("Lessee Delay") any such Lessee Delay shall thereupon effect a
postponement of the date at which Lessor is obliged to deliver the Leased
Premises to Lessee by the number of days of Lessee Delay. However, the Delivery
Date and the Commencement Date as would otherwise be established had Lessee
Delay not occurred shall not be postponed by the number of days of Lessee Delay.
"Force Majeur" shall mean event(s) beyond the reasonable control of
the obligated party such as, for example only, strikes, riots, governmental act
or failure to act, shortage of materials, weather and other such matters over
which the party does not have reasonable control (except matters resulting from
financial insufficiency).
"Lease Year" means any calendar year, or portion thereof, following
the commencement hereof, the whole or any part of which period is included
within the Term.
"Leased Premises" shall mean the portion of space leased to Lessee
hereunder.
"Lessee's Work" shall mean the work of improvement to the Leased
Premises to be performed by Lessee in accordance with the Work Letter Agreement.
"Lessor's Work" shall mean the work to be performed by Lessor in
accordance with the Work Letter Agreement.
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"Lines" shall mean domestic water, chilled water and waste pipes and
lines, exhaust pipes and vents, communications, computer, audio and video,
security and electrical (other than electrical wiring within the Leased Premises
terminating at or connected to Building check meters), cables, wires, lines,
duct work, sensors, switching equipment, control boxes, risers and related
improvements at the Complex, Building or the Leased Premises.
"Major Vertical Penetrations" shall mean stairs, elevator shafts,
flues, pipe shafts, vertical ducts, and the like, and their enclosing walls,
which serve more than one floor of the Building, but shall not include stairs,
dumbwaiters, lifts, and the like, exclusively serving a lessee occupying space
on more than one floor.
"Occupied Floor Area" means that portion of the Rentable Area of the
Complex which is leased and occupied.
"Operating Costs" means the total amounts paid or payable, whether by
Lessor or others on behalf of Lessor, in connection with the ownership,
maintenance, repair, replacement and operations of the Complex (including,
without limitation, all areas and facilities within the exterior boundaries of
the Complex) as determined in a manner consistent with generally accepted
accounting principles ("GAAP"). Operating Costs shall include, but not be
limited to, the aggregate of the amount paid for all electricity and fuel used
in heating and air conditioning of the Building; the amount paid or payable for
all electricity furnished by Lessor to the Complex exclusive of electricity
furnished to Lessee and other lessees for usable areas of the Complex; the cost
of periodic relamping and reballasting of Building Standard lighting fixtures;
the amount paid or payable for all hot and cold water (other than that
chargeable to lessees by reason of their extraordinary consumption of water);
the amount paid or payable for all labor and/or wages and other payments
including cost to Lessor of workers' compensation and disability insurance,
payroll taxes, welfare and fringe benefits made to janitors, caretakers, and
other employees, contractors and subcontractors of Lessor (including wages of
the Building manager) involved in the operation, maintenance and repair of the
Complex; painting for exterior walls of the buildings in the Complex; managerial
and administrative expenses; the total charges of any independent contractors
employed in the repair, care, operation, maintenance, and cleaning of the
Complex; the amount paid or payable for all supplies occasioned by everyday wear
and tear; the costs of VAC (as defined in Section 13.1) of the Complex, (except
to the extent paid by Lessee, or other lessees, for VAC provided to the Leased
Premises, or other leased premises, in respect of VAC provided outside the
Climate Control Hours defined in Section 13.1), window and exterior wall
cleaning, telephone and utility costs; the cost of accounting services necessary
to compute the rents and charges payable by lessees and keep the books of the
Complex; fees for management, legal, accounting, inspection and consulting
services; the cost of operating, repairing and maintaining and replacing the
Building escalators and elevators and the utility systems, including Lines, of
the Complex including the cost of inspection and service contracts; the cost of
porters, guards and other protection services; the cost of establishing and
maintaining the Building's directory board; payments for general maintenance and
repairs to the plant and equipment supplying climate control; the cost of
supplying all services pursuant to Article 13 hereof to the extent such services
are not paid by individual lessees; amortization of the costs, including repair
and replacement, of all maintenance and cleaning equipment and master utility
meters and of the costs incurred for repairing or replacing all other fixtures,
equipment and facilities serving or comprising the Complex which by their nature
require periodic or substantial repair or replacement, and which are not charged
fully in the year in which they are incurred, at rates on the various items
determined from time to time by Lessor in accordance with GAAP; the cost of
operating the parking facility in the Complex and the cost of parking fees and
rents paid to the owner of another parcel for use of certain parking spaces
therein (collectively "Parking Costs") net of parking fees and rents collected
by Lessor in connection herewith provided, however, Lessor shall not be
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obligated to credit any sums received in excess of the actual Parking Costs; the
cost and expenses for insurance for which Lessor is responsible hereunder or
which Lessor reasonably deems necessary in connection with the operation of the
Complex (including, without limitation, self-insurance and the payment of
deductible amounts under insurance policies); community association dues or
assessments and property owners' association dues and assessments which may be
imposed upon Lessor by virtue of any recorded instrument affecting title to the
Complex; and costs of complying with all governmental regulations, rules, laws,
ordinances and codes enacted after the Delivery Date, including Environmental
Laws as such term is defined in Article 12. In addition, Operating Costs shall
include any Real Estate Taxes as defined in Paragraph 2.1 hereof Operating Costs
shall also include, without limitation, the repair and replacement, resurfacing
and repaving of any paved areas, curbs, gutters or other surfaces or areas
within the Complex, the repair and replacement of any equipment or facilities
located within or serving the Complex, and the cost of any capital repairs,
replacements or improvements made by Lessor to the Complex ("Capital Costs").
However, certain Capital Costs (the "Restricted Capital Costs") shall be
includable in Operating Costs each year only to the extent of that fraction
allocable to the year in question calculated by amortizing such Restricted
Capital Costs over the reasonably useful life of the improvement resulting
therefrom, as determined by Lessor, with interest on the unamortized balance at
the higher of (i) ten percent (10%) per annum; or (ii) the interest rate as may
have been paid by Lessor for the funds borrowed for the purpose of performing
the work for which the Restricted Capital Costs have been expended, but in no
event to exceed the highest rate permissible by law. The Restricted Capital
Costs subject to such amortization procedure are the following: (X) those costs
for capital improvements to the Complex of a type which do not normally recur
more frequently than every five (5) years in the normal course of operation and
maintenance of facilities such as the Complex (specifically excluding painting
of all or a portion of the Complex); (y) costs incurred for the purpose of
reducing other operating expenses or utility costs, from which Lessee can expect
a reduction in the amounts it would otherwise expend, or reimburse Lessor, and
(z) expenditures by Lessor that are required by governmental law, ordinance,
regulation or mandate, including, without limitation, any Environmental Laws (as
such term is defined in Article 12), which were not applicable to the Complex at
the time of the original construction. Operating Costs shall not include legal
or accounting expenses incurred expressly for negotiating a lease with a
particular lessee, or as a result of a default of a specific lessee, which
negotiation or default does not affect the operation of the Complex.
"Proportionate Share" or "Pro Rata Percent" shall be that fraction
(converted to a percentage) the numerator of which is the Rentable Area of the
Leased Premises and the denominator of which is the number of square feet of
Rentable Area of all floors (or leased premises if the Complex is on a single
floor) rentable to lessees in the Complex. Lessee's Proportionate Share as of
the commencement of the Term hereof is specified in Section 1.8. Said
Proportionate Share shall be recalculated as may be required effective as at the
commencement of any period to which the calculation is applicable in this Lease.
Notwithstanding the preceding provisions of this Section, Lessee's Proportionate
Share as to certain expenses may be calculated differently to yield a higher
percentage share for Lessee as to certain expenses in the event Lessor permits
other lessees in the Complex to directly incur such expenses rather than have
Lessor incur the expense in common for the Complex (such as, by way of
illustration, wherein a lessee performs its own janitorial services). In such
case Lessee's Proportionate Share of the applicable expense shall be calculated
as having as its denominator the Rentable Area of all floors (or leased premises
if the Complex is on a single floor) rentable to lessees in the Complex less the
Rentable Area of lessees who have incurred such expense directly. Furthermore,
in the event Lessee consumes extraordinary amounts of any provided utility or
other service as determined in Lessor's good faith judgment, Lessee's
Proportionate Share for such utility or service may, at Lessor's election, be
based on usage as opposed to Rentable Area, that is, Lessee's Proportionate
Share of such a utility or service would be calculated as having as its
denominator the total usage of such utility or service in the Complex (or
Building as the case may be), and having as its numerator Lessee's usage of such
utility or service, as determined by Lessor in its sole good faith judgment. In
any case in which Lessee, with Lessor's consent, incurs such expenses directly,
Lessee's Proportionate Share will be calculated specially so that expenses of
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the same character which are incurred by Lessor for the benefit of other lessees
in the Complex shall not be prorated to Lessee. If repairs are required for
systems exclusively serving the Leased Premises (whether within or outside of
said Leased Premises), Lessee shall pay one hundred percent (100%) of such
repair costs. Nothing herein shall imply that Lessor will permit Lessee or any
other lessee of the Complex to incur any Common Area Costs or Operating Costs.
Any such permission shall be in the sole discretion of the Lessor, which Lessor
may grant or withhold in its arbitrary judgment.
"Quadrant." Floors 2-6 of the Building are centered around the central
Atrium with Rentable Area being approximately divided into four unequal parts
known as "Quadrant(s)" and commonly carrying identifying letters as follows:
Quadrant A: Southeast of Atrium
Quadrant B: Northeast of Atrium
Quadrant C: Northwest of Atrium
Quadrant D: Southwest of Atrium
"R/U Ratio" (an abbreviation for Rentable/Usable Ratio) shall mean
that fraction the numerator of which is Rentable Area and the denominator of
which is Usable Area.
"Real Estate Taxes" or "Taxes" shall mean and include all general and
special taxes, assessments, fees of every kind and nature, duties and levies,
charged and levied upon or assessed by any governmental authority against the
Complex including the land, the Building, any other improvements situated on the
land other than the Building, the various estates in the land and the Building,
any Tenant Improvements, fixtures, installations, additions and equipment,
whether owned by Lessor or Lessee; except that it shall exclude any taxes of the
kind covered by Section 8.1 hereof to the extent Lessor is reimbursed therefor
by any lessee in the Building. Real Estate Taxes shall also include the
reasonable cost to Lessor of contesting the amount, validity, or the
applicability of any Taxes mentioned in this section provided Tenant receives a
ratable credit for any refund obtained through such a contest. Further included
in the definition of Taxes herein shall be general and special assessments,
license fees, commercial rental tax, levy, penalty or tax (other than
inheritance or estate taxes) imposed by any authority having the direct or
indirect power to tax, as against any legal or equitable interest of Lessor in
the Leased Premises or in the Complex or on the act of entering into this Lease
or, as against Lessor's right to rent or Other income therefrom, or as against
Lessor's business of leasing the Leased Premises or the Complex, any tax, fee,
or charge with respect to the possession, leasing, transfer of interest,
operation, management, maintenance, alteration, repair, use, or occupancy by
Lessee, of the Leased Premises or any portion thereof or the Complex, or any tax
imposed in substitution, partially or totally, for any tax previously included
within the definition of Taxes herein, or any additional tax, the nature of
which may or may not have been previously included within the definition of
Taxes. Further, if at any time during the Term of this Lease the method of
taxation or assessment of real estate or the income therefrom prevailing at the
time of execution hereof shall be, or has been altered so as to cause the whole
or any part of the Taxes now or hereafter levied, assessed or imposed on real
estate to be levied, assessed or imposed upon Lessor, wholly or partially, as a
capital levy, business tax, fee, permit or other charge, or on or measured by
the Rents received therefrom, then such new or altered taxes, regardless of
their nature, which are attributable to the land, the Building or to other
improvements on the land shall be deemed to be included within the term Real
Estate Taxes for purposes of this Section, whether in substitution for, or in
addition to any other Real Estate Taxes, save and except that such shall not be
deemed to include any enhancement of said tax attributable to other income of
Lessor. With respect to any general or special assessments which may be levied
upon or against the Leased Premises, the Complex, or the underlying realty, or
which may be evidenced by improvement or other bonds, and may be paid in annual
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or semi-annual installments, only the amount of such installment, prorated for
any partial year, and statutory interest shall be included within the
computation of Taxes for which Lessee is responsible hereunder. Notwithstanding
anything to the contrary contained herein, Taxes shall not include any interest
and penalties due to Landlord's failure to pay Taxes before delinquency due
date.
"Rent," "rent" or "rental" means Minimum Rent (as defined in Section
7.1 herein) and all other sums required to be paid by Lessee pursuant to the
terms of this Lease.
"Rentable Area." The Rentable Area means the Rentable Area determined
by BOMA, subject to such adjustments as Lessor may incorporate from time to
time. The Rentable Area of a floor shall mean all areas available or held for
the exclusive use and occupancy of occupants or future occupants of the Complex,
calculated in accordance with BOMA. No deductions shall be made for columns and
projections necessary to the Building. The Rentable Area of that portion of a
lessee's premises located on a floor shall be computed by multiplying the Usable
Area of such premises by the R/U Ratio. The Rentable Area of the Building is the
aggregate of the Rentable Area on all floors.
"Structural" as herein used shall mean any portion of the Leased
Premises or Complex which provides bearing support to any other integral member
of the Complex such as, by limitation, the roof structure (trusses, joists,
beams), posts, load bearing walls, foundations, girders, floor joists, footings,
and other load bearing members constructed by Lessor.
"Tenant Improvements" shall mean the Lessee's Work in accordance with
the Work Letter Agreement and all subsequent Alterations (as defined in Section
15.2 herein) to the Leased Premises made by Lessee.
"Term" shall mean the term of the lease as specified in Article 4
hereof, including any partial month at the commencement of the Term.
"Usable Area." The Usable Area of any individual leased premises shall
be the number of square feet calculated in accordance with BOMA, subject to such
adjustments as Lessor may incorporate from time to time; provided, however, that
the term Usable Area shall include toilet rooms in each Quadrant if such toilet
rooms are for the exclusive use of a lessee occupying such Quadrant. The Usable
Area of a floor shall be equal to the sum of all Usable Areas on that floor.
"Work Letter Agreement." That certain Agreement for performance of
improvements to the Premises, Building or Complex set forth in Exhibit D,
attached hereto and made a part herein by reference.
3. PREMISES
3.1 Demising Clause. Lessor hereby leases to Lessee, and Lessee hires from
Lessor a portion of the Complex as hereinafter defined.
3.2 Description. The Complex, as defined in Section 2.1, is described
generally in Section 1.3(A) hereof. The premises leased herein are described in
Section 1.3(B) and delineated on Exhibit C, which is attached hereto and made a
part hereof by reference, consisting of the approximate amount of square footage
as specified in Section 1.3(B) hereof. The term "Building" shall refer to the
Building in which the Leased Premises are located. The portion leased herein to
Lessee is hereinafter referred to as the "Leased Premises." Lessee acknowledges
that Lessor may change the shape, size, location, number and extent of the
improvements to any portion of the Complex without consent of Lessee and without
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affecting Lessee's obligations hereunder provided such changes do not materially
and adversely affect Tenant's access to the Leased Premises. Lessor reserves the
area beneath and above the Leased Premises, as well as the exterior thereof,
together with the right to install, maintain, use, repair and replace Lines,
pipes, ducts, conduits, wires, and structural elements leading through the
Leased Premises serving other parts of the Complex, including, but not limited
to, vertical risers, so long as such items are concealed by walls, flooring or
ceilings. Such reservation in no way affects the maintenance obligations imposed
herein, nor shall such reservation alter the parties' responsibilities and
obligations set forth in this Lease regarding Hazardous Materials (as defined in
Section 12.3(a) below).
3.3 ATM. Lessee may install, at Lessee's sole cost and expense, an
Automated Teller Machine ("ATM") in a location mutually agreeable to Lessor and
Lessee. The size and signage of the ATM will be subject to Lessor's approval. If
the ATM is located on a wall that is a perimeter wall of the Leased Premises as
shown on Exhibit C, the ATM Rent reflected on Section 1.5 shall not apply.
3.4 Covenants, Conditions and Restrictions. The parties agree that this
Lease is subject to the effect of: (a) any covenants, conditions, restrictions,
easements, mortgages or deeds of trust, ground leases, rights of way of record,
and any other matters or documents of record; (b) any zoning laws of the city,
county and state where the Complex is situated; and (c) general and special
taxes not delinquent. Lessee agrees that as to its leasehold estate, Lessee and
all persons in possession or holding under Lessee will conform to and will not
violate the terms of any covenants, conditions or restrictions of record which
may now or hereafter encumber the property (hereinafter the "Restrictions").
This Lease is subordinate to the Restrictions and any amendments or
modifications thereto.
3.5 Right of First Offer.
(a) Commencing twelve (12) months after the Commencement Date, Lessee
shall have a continuing right of "First Offer" to lease any increment of space
adjacent to the Leased Premises which becomes "available for lease" during the
term subject to the provisions of this Section 3.5. An increment of space shall
not be deemed "available for lease" if the lessee under an expiring lease of
such space desires to renew or extend its lease of such space pursuant to the
exercise of a right or option to do so pursuant to the terms of such party's
lease.
(b) Lessor shall give Lessee written notice ("Lessor's Right of First
Offer Notice") of each increment of space which becomes available for lease
within thirty (30) days of availability. Lessor's Right of First Offer Notice
shall identify the First Offer space, the availability date, and the applicable
Rent. If Lessee elects to lease the First Offer space, Lessee shall notify
Lessor in writing within ten (10) days after Lessee's receipt of Lessor's Right
of First Offer Notice. If Lessee does not exercise its right to lease the First
Offer Space, Lessor shall be released of any further obligation to offer that
particular First Offer Space to Lessee unless the space subsequently becomes
available for lease.
(c) Upon Lessee's election to lease a First Offer Space, Lessor and
Lessee shall promptly enter into an amendment of this Lease, adding the First
Offer Space to the Leased Premises herein on all terms and conditions of this
Lease except that (i) the term of the lease of such First Offer Space shall
commence upon the ..availability date and shall continue coextensively with the
remaining Term of this Lease; (ii) the Rent shall be the Rent stated in Lessor's
Right of First Offer Notice, subject to adjustment as provided in the Lease; and
(iii) Lessee shall take the First Offer Space in its then "as-is" condition and
Lessor shall have no obligation to pay for any improvements.
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(d) Notwithstanding the foregoing provision of this Section 3.5,
Lessee shall have no right of First Offer if (i) an Event of Default shall have
occurred and be continuing under this Lease; (ii) Lessee is not in occupancy of
the entire original Leased Premises; or (iii) Lessee does not intend to occupy
the First Offer Space. Tenant's right of First Offer shall not be applicable
during the last two (2) years of the Term unless and until Lessee shall validly
exercise its renewal option, in which case Lessee's right of First Offer shall
terminate two (2) years prior to the expiration of the next succeeding renewal
term.
4. TERM
4.1 Commencement Date. The Term of this Lease shall commence on the
Commencement Date defined in Section2-1 and shall be for the Term specified in
Section 1.4(B) hereof, plus any partial month at the commencement of the Term.
4.2 Acknowledgment of Commencement. After delivery of the Leased Premises
to Lessee, Lessee shall execute a written acknowledgment of the date of
commencement in the form attached hereto as Exhibit E, and by this reference it
shall be incorporated herein.
4.3 Renewal Term.
(a) Manner of Exercise. Lessee shall have the right and option to
extend the Term of this Lease for two (2) additional period(s) of five years
(such period being referred to as a "Renewal Term") as specified in Section
1.4(c), provided that no uncured event of default exists as of the date that
Tenant exercises its option to extend. Lessee may exercise the option, if at
all, by written notice to Lessor delivered no later than twelve (12) months
prior to the date which represents the expiration of the then current term
("Expiration Date"), (the "Outside Exercise Date"). Unless all of the above
conditions precedent have been satisfied, Lessee's exercise of any option shall
be of no force or effect and the Renewal Term shall lapse. If all of the above
conditions precedent are satisfied, then the term of this Lease shall be
extended for the Renewal Term, and all of the terms, conditions and provisions
of this Lease shall continue in full force and effect throughout the Renewal
Term, except that the Minimum Rent to be paid by Lessee for the Renewal Term
shall be 100% of the Fair Market Rental (as defined below) value of the Leased
Premises as of the Expiration Date, but in no event shall the Minimum Rent for
the Renewal Term be less than the Minimum Rent payable in the last month of the
Term of this Lease prior to the Expiration Date.
(b) Fair Market Rental. If Lessee exercises the right to extend the
Term then the Minimum Rent shall be adjusted to equal the Fair Market Rental for
the Leased Premises as of the date of the commencement of the Renewal Term,
pursuant to the procedures hereinafter set forth. The term "Fair Market Rental"
means the Minimum Rent chargeable for the Leased Premises based upon the
following factors applicable to the Leased Premises or any comparable premises:
(i) Rental rates being charged for comparable premises in the
same geographical location.
(ii) The relative locations of the comparable premises.
(iii) Improvements, or allowances provided for improvements, or
to be provided.
(iv) Rental adjustments, if any, or rental concessions.
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(v) Services and utilities provided or to be provided.
(vi) Use limitations or restrictions.
(vii) Any other relevant Lease terms or conditions.
The Fair Market Rental evaluation may include provision for further rent
adjustments during the Renewal Term in question if such adjustments are commonly
required in the market place for similar types of leases.
(c) Determination of Fair Market Rental. Upon exercise of the right to
extend the Term, and included within the Notice of Exercise, Lessee shall notify
Lessor of its opinion of Fair Market Rental as above defined for the Renewal
Term. If Lessor disagrees with Lessee's opinion of the Fair Market Rental, it
shall * so notify Lessee ("Lessor's Value Notice") within thirty (30) days after
receipt of Lessee's Notice of Exercise. If the parties are unable to resolve
their differences within ten (10) days thereafter or if separated by more than
ten percent (10%), either party may apply for Arbitration as provided below. If
the values are within ten percent (100/6), they shall be averaged. If neither
party applies for Arbitration within ten (10) days after receipt by Lessee of
Lessor's Value Notice, Lessee shall be bound to the Fair Market Rental stated in
Lessor's Value Notice. Should either party elect to arbitrate, and if the
arbitration is not concluded before the commencement of the Renewal Term, Lessee
shall pay Minimum Rent to Lessor in an amount equal to the Fair Market Rental
set forth in Lessor's Value Notice, until the Fair Market Rental is determined
in accordance with the arbitration provisions hereof ("Arbitration"). If the
Fair Market Rental as determined by Arbitration differs from that stated in
Lessor's Value Notice, then any adjustment required to correct the amount
previously paid by Lessee shall be made by payment by the appropriate party
within thirty (30) days after the determination of Fair Market Rental by
Arbitration has been concluded, as provided herein. Lessee shall be obligated to
make payment during the entire Renewal Term of the Minimum Rent determined in
accordance with the Arbitration procedures hereunder.
(d) Arbitration. In the event either party seeks Arbitration of Fair
Market Rental under the provisions hereof for the Renewal Term, the other party
shall be bound to submit the matter for determination by Arbitration. The
Arbitration shall be conducted and determined in the County where the Leased
Premises are located.
(e) Demand for Arbitration. A party demanding Arbitration hereunder
shall make its demand in writing ("Demand Notice") within ten (10) days after
service of Lessor's Value Notice.
(f) Within ten (10) days after service of a Demand Notice, Lessor
shall provide Lessee with the names of three (3) appraisers. Each appraiser
shall be a member of the American Institute of Real Estate Appraisers (or its
successor), or real estate professionals qualified by appropriate training and
experience and having at least ten (10) years experience dealing with commercial
office leasing in the San Francisco South of Market and Financial districts
("Appraiser Notice"). Within ten (10) days after service of the Appraiser
Notice, Lessee shall notify Lessor of Lessee's selection of one of the
appraisers designated in the Appraiser Notice and that Appraiser shall serve as
the Arbitrator.
(g) Decision of the Arbitrator. The Arbitrator so selected shall,
within ninety (90) days after his appointment, state in writing his
determination as to whether Lessor's valuation, or Lessee's valuation of Fair
Market Rental, most closely approximates his own. The Arbitrator may not state
his own opinion of Fair Market Rental, but is strictly limited to the selection
of Lessor's Fair Market Rental evaluation as stated in Lessor's Value Notice or
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Lessee's Fair Market Rental evaluation as stated in the Notice of Exercise. The
Arbitrator shall have the right to consult experts and competent authorities
with factual information or evidence pertaining to a determination of Fair
Market Rental, but any such consultation shall be made in the presence of both
parties with full right to cross examine. The Arbitrator shall have no right to
propose a middle ground or any modification of either of the proposed
valuations, and shall have no power to modify the provisions of this Lease. The
valuation so chosen as most closely approximating that of the Arbitrator shall
constitute the decision of the Arbitrator and shall be final and binding upon
the parties, absent fraud or gross error. The Arbitrator shall render a decision
and award in writing, with counterpart copies to each party and judgment thereon
may be entered in any court of competent jurisdiction.
(h) Successor Arbitrator; Fees and Expenses. In the event of failure,
refusal, or inability of the Arbitrator to act in a timely manner, a successor
shall be appointed in the same manner as such Arbitrator was first chosen
hereunder. The fees and expenses of the Arbitrator and any administrative
hearing fee, if any, shall be divided equally between the parties. Each party
shall bear its own attorneys' fees and other expenses including fees for
witnesses in presenting evidence to the Arbitrator.
5. PRE-TERM POSSESSION
5.1 Pre-Term Possession.
(a) Conditions of Entry In the event the Leased Premises are to be
constructed or remodeled by Lessor, Lessor may notify Lessee when the Leased
Premises are ready for Lessee's fixturing or Lessee's Work, which may be prior
to substantial completion of the Leased Premises by Lessor. Lessee may thereupon
enter the Leased Premises for such purposes at its own risk, to make such
improvements as Lessee shall have the right to make, to install fixtures,
supplies, inventory and other property. Lessee agrees that it shall not in any
way interfere with the progress of Lessor's Work by such entry. Should such
entry prove an impediment to the progress of Lessor's Work, in Lessor's
judgment, Lessor may demand that Lessee forthwith vacate the Leased Premises
until such time as Lessor's work is complete, and Lessee shall immediately
comply with this demand. In the event Lessor requires that Lessee vacate, the
ninety (90) day time period specified in Section 2.1, "Commencement Date",
(iii), shall be extended for the number of days Tenant has been required to
vacate the Leased Premises.
(b) Lease Terms Apply. During the course of any pre-term possession,
whether such pre-term period arises because of an obligation of construction on
the part of Lessor, or otherwise, all terms and conditions of this Lease, except
for rent and Commencement Date, shall apply, particularly with reference to
indemnity by Lessee of Lessor under Article 17 herein for all occurrences within
or about the Leased Premises.
6. DELAY IN DELIVERY OF POSSESSION
6.1 Delay. If Lessor, for any reason whatsoever, cannot deliver possession
of the Leased Premises to Lessee at the Estimated Delivery Date, this Lease
shall not be void or voidable, nor shall Lessor be liable for any loss or damage
resulting therefrom, but in that event, there shall be no accrual of Rent for
the period between the Estimated Delivery Date and the Commencement Date. In the
event Lessor cannot deliver the Leased Premises to Lessee within three (3)
months beyond the Estimated Delivery Date, then Lessee may elect to terminate
this Lease by written notice to Lessor within ten (10) days thereafter. In the
event Lessor, after diligent and good faith efforts, cannot deliver the Leased
Premises to Lessee within six (6) months beyond the Estimated Delivery Date,
then Lessor may elect to terminate this Lease by written notice to Lessee within
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ten (10) days thereafter. In the event the Leased Premises are not delivered
within three (3) years from the date of execution, this Lease shall
automatically terminate.
7. MINIMUM RENT
7.1 Payment. Lessee shall pay to Lessor at the address specified in Section
1. 1, or at such other place as Lessor may otherwise designate, as "Minimum
Rent" for the Leased Premises the amount specified in Section 1.5(A) hereof,
payable in advance on the first day of each month during the Term. If the Term
commences on other than the first day of a calendar month, the rent for the
first partial month shall be prorated accordingly.
All payments of Minimum Rent (including sums defined as rent in Section
2.1) shall be in lawful money of the United States, and payable without
deduction, setoff, offset, counterclaim,. recoupment, notice or demand.
7.2 Advance Rent. The amount specified in Section 1.5(B) hereof is paid
herewith to Lessor upon execution of this Lease as advance rent, receipt of
which is hereby acknowledged, provided, however, that such amount shall be held
by Lessor as a "Security Deposit" pursuant to Section 10.1 hereof until it is
applied by Lessor to the first Minimum Rent due hereunder.
7.3 Late Payment. If during any twelve (12) month period Lessee fails on
more than one occasion to make any payment of Minimum Rent to Lessor on the date
when it is due, then Lessor may, by giving written notice to Lessee, require
that. Lessee pay the Minimum Rent to Lessor quarterly in advance.
8. ADDITIONAL RENT
8.1 Personal Property, Gross Receipts, Leasing Taxes. This Section 8.1 is
intended to deal with impositions or taxes directly attributed to Lessee or this
transaction, as distinct from taxes attributable to the Complex which are to be
allocated among various lessees and others and which are included in Operating
Costs. In addition to the Minimum Rent and additional charges to be paid by
Lessee hereunder, Lessee shall reimburse Lessor upon demand for any and all
taxes required to be paid by Lessor (excluding state, local or federal personal
and corporate income taxes measured by the income of Lessor from all sources,
and estate and inheritance taxes) whether or not now customary or within the
contemplation of the parties hereto:
(a) Upon, measured by, or reasonably attributable to the cost or value
of Lessee's equipment, furniture, fixtures and other personal property located
in the Leased Premises or by the cost or value of any Tenant Improvements made
in or to the Leased Premises by or for Lessee, regardless of whether title to
such improvements shall be in Lessee or Lessor;
(b) Upon or with respect to the possession, leasing, operation,
management, maintenance, Alteration, repair, use or occupancy by Lessee of the
Leased Premises or any portion thereof to the extent such taxes are not included
as Real Estate Taxes as defined in Section 2. 1;
(c) Upon this transaction or any document to which Lessee is a party
creating or transferring an interest or an estate in the Leased Premises; and
(d) In connection with any testing, investigation, abatement,
remediation, removal, transportation and/or disposal of any Hazardous Materials
by Lessee (or by Lessor, pursuant to any provision of this Lease granting to
Lessor the right to do any of the foregoing and to xxxx Lessee therefor).
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For purposes of this Section 8.1, the term "taxes" shall include, but not
be limited to, any fees, charges, fines, penalties and costs (including, without
limitation, permit, approval or licensing fees, charges or costs), excepting
interest and penalties for failure of Landlord to pay Taxes in a timely manner.
In the event that it shall not be lawful for Lessee so to reimburse Lessor,
the Minimum Rent payable to Lessor under this Lease shall be increased to net
Lessor (i.e., after payment of the Taxes for which Lessor may not receive
reimbursement from Lessee) the amount of Minimum Rent plus reimbursement for
Taxes which would have been receivable by Lessor if such tax had not been
imposed. All Taxes payable by Lessee under this Section shall be deemed to be,
and shall be paid as, additional Rent.
8.2 Operating Costs.
(a) During each calendar year or part thereof, Lessee shall pay to
Lessor as additional Rent, in accordance with Section 8.3 hereof, Lessee's
Proportionate Share of all Operating Costs for such calendar year. During each
tax year (July 1 through June 30) or part thereof, Lessee shall pay to Lessor as
additional Rent, in accordance with Section 8.3 hereof, Lessee's Proportionate
Share of all Real Estate Taxes for such tax year.
(b) In addition, Lessee shall pay to Lessor, as additional Rent, in
accordance with Section 8.3 hereof, one hundred percent (100%) of the
electricity and other separately metered utility charges for the Leased Premises
(including utilities for the VAC system).
(c) If any Lease Year of less than twelve (12) months is included
within the Term, the amount payable by Lessee for such period shall be prorated
on a per them basis (utilizing a three hundred sixty (360) day year).
(d) Lessor shall exercise good faith efforts to equitably allocate
those Operating Costs that are incurred for the direct benefit of specific types
of lessees or users in the Complex to and among those specific lessees and/or
users ("Cost Pools"). Such Cost Pools may include, but shall not be limited to,
the office, and showroom space, the second floor Atrium, the concourse level,
and any retail space lessees of the Complex. Lessor's determination of such
allocations shall be made in a manner consistent with the terms and conditions
of this Section 8.2(c) and shall be subject to reconciliation per Section
8.3(c). Lessee acknowledges that the allocation of Operating Costs among Cost
Pools does not affect all Operating Costs and is limited to specific items which
Lessor determines, in good faith, should be shared among the lessees and/or
users of a certain Cost Pool.
8.3 Method of Payment. Any additional Rent payable by Lessee under Sections
8.1 and 8.2 hereof shall be paid as follows, unless otherwise provided:
(a) During the Term, Lessee shall pay to Lessor monthly in advance
with its payment of Minimum Rent, one-twelfth (1/12) of the amount of such
additional Rent as estimated by Lessor in advance, in good faith, to be due from
Lessee.
(b) Annually, as soon as is reasonably possible after the expiration
of each Lease Year, Lessor shall prepare in good faith and deliver to Lessee a
comparative statement, which statement shall be conclusive between the parties
hereto, setting forth: (i) the Operating Costs for such Lease Year; and (ii) the
amount of additional Rent as determined in accordance with the provisions of
this Article 8.
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(c) If the aggregate amount of such estimated additional Rent payments
made by Lessee in any Lease Year should be less than the additional Rent due for
such year, then Lessee shall pay to Lessor as additional Rent within fifteen
(15) days of written demand the amount of such deficiency. If the aggregate
amount of such additional Rent payments made by Lessee in any Lease Year of the
Term should be greater than the additional Rent due for such year, then should
Lessee not be otherwise in default hereunder, the amount of such excess will be
applied by Lessor to the next succeeding installments of such additional Rent
due hereunder; and if there is any such excess for the last year of the Term,
the amount thereof will be refunded by Lessor to Lessee, provided Lessee is not
otherwise in default under the terms of this Lease.
9. ACCORD AND SATISFACTION
9.1 Acceptance of Payment. No payment by Lessee or receipt by Lessor of a
lesser amount of Minimum Rent or any other sum due hereunder, shall be deemed to
be other than on account of the earliest due rent or payment, nor shall any
endorsement or statement on any check or any letter accompanying any such check
or payment be deemed an accord and satisfaction, and Lessor may accept such
check or payment without prejudice to Lessor's right to recover the balance of
such rent or payment or pursue any other remedy available in this Lease, at law
or in equity. Lessor may accept any partial payment from Lessee without
invalidation of any contractual notice required to be given herein ( to the
extent such contractual notice is required) and without invalidation of any
notice required to be given pursuant to California Code of Civil Procedure
section 1161, et seq., or of any successor statute thereto.
10. SECURITY DEPOSIT
10.1 Lessee shall pay Lessor upon execution hereof the sum specified in
Section 1.6. This sum is designated as a Security Deposit and shall remain the
sole and separate property of Lessor until actually repaid to lessee (or at
Lessor's option the last assignee, if any, of Lessee's interest hereunder), said
sum not being earned by Lessee until all conditions precedent for its payment to
Lessee have been fulfilled. As this sum both in equity and at law is Lessor's
separate property, Lessor shall not be required to: (i) keep said deposit
separate from its general accounts; or (ii) pay interest or other increment for
its use. If Lessee fails to pay rent or other charges when due hereunder, or
otherwise defaults with respect to any provision of this Lease, including and
not limited to Lessee's obligation to restore or clean the Leased Premises
following vacation thereof, Lessee, at Lessor's election, shall be deemed to
have earned the right to repayment of the Security Deposit, or those portions
thereof used or applied by Lessor for the payment of any rent or other charges
in default, or for the payment of any other sum to which Lessor may become
obligated by reason of lessee's default, or to compensate Lessor for any loss or
damage which Lessor may suffer thereby. Lessor may retain such portion of the
Security Deposit as it reasonably deems necessary to restore or clean the Leased
Premises following vacation by Lessee. The Security Deposit is not to be
characterized as rent until and unless so applied in respect of a default by
Lessee. In the event a portion or all of the Security Deposit is paid pursuant
to a Letter of Credit, the terms specified in Exhibit J, attached hereto, shall
apply.
10.2 If Lessor elects to use or apply all or any portion of the Security
Deposit as provided in Section 10.1, Lessee shall within ten (10) days after
written demand therfor pay to Lessor in cash, an amount equal to that portion of
the Security Deposit used or applied by Lessor, and Lessee's failure to so do
shall be a material breach of this Lease. The ten (10) day notice specified in
the preceding sentence shall insofar as not prohibited by law, constitute full
satisfaction of notice of default provisions required by law or ordinance.
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11. USE
11.1 Permitted Use. The Leased Premises may be used and occupied only for
the purposes specified in Section 1.7 hereof, and for no other purpose or
purposes. Lessee shall promptly comply with all laws, ordinances, orders and
regulations affecting the Leased Premises, their cleanliness, safety, occupation
and use.
11.2 Safes, Heavy Equipment. Lessee shall not place a load upon any floor
of the Leased Premises which exceeds fifty (50) pounds per square foot live
load. without the express written consent of Lessor. Lessor reserves the right
to prescribe the weight and position of all safes and heavy installations which
Lessee wishes to place in the Leased Premises so as properly to distribute the
weight thereof, or to require plans prepared by a qualified structural engineer
at Lessee's sole cost and expense for such heavy objects. Notwithstanding the
foregoing, Lessor shall have no liability for any damage caused by the
installation of such heavy equipment or safes.
11.3 Machinery. Business machines and mechanical equipment belonging to
Lessee which cause noise and/or vibration that may be transmitted to the
structure of the Building or to any other leased space to such a degree as to be
objectionable to Lessor or to any lessees in the Complex shall be placed and
maintained by the party possessing the machines or equipment, at such party's
expense, in settings of cork, rubber or spring type noise and/or vibration
eliminators, and Lessee shall take such other measures as needed to eliminate
vibration and/or noise. If the noise or vibrations cannot be eliminated, Lessee
must remove such equipment within ten (10) days following written notice from
Lessor.
11.4 Hazardous Activities. Lessee shall not engage in any activities or
permit to be kept, used, or sold in or about the Leased Premises, any article
which may be prohibited by the standard form of fire insurance policies. Lessee
shall, at its sole cost and expense, comply with any and all requirements,
pertaining to the Leased Premises, of any insurance organization or company,
necessary for the maintenance of reasonable fire and public liability insurance
covering the Building and appurtenances.
11.5 Tenant Exclusive. Provided (i) Lessee is not in default under this
Lease, (ii) Lessee has not failed on two (2) or more occasions to observe or
perform any provision of this Lease during any twelve (12) month period, (iii)
Lessee is doing business as a retail, full service, direct deposit bank, and
(iv) this Lease has not been terminated and is still in effect, Lessor agrees
not to enter into a lease with any other lessee for space on the Lobby Level
(First Floor Xxxxxxxx Street Frontage) for use as a retail, full service, direct
deposit bank. Notwithstanding anything to the contrary contained herein, the
provisions of this Section 11.5 shall not prevent Lessor from leasing or using
space anywhere in the Complex (including the Lobby Level) for (A) one or more
ATM's or financial services machines or (B) for a financial services or bank
business provided such business is not a retail, full service, direct deposit
bank.
12. COMPLIANCE WITH LAWS AND REGULATIONS
12.1 Lessee's Obligations. Except with respect to the Common Areas, Lessee,
shall, at its sole cost and expense, comply with all of the requirements of all
municipal, state and federal authorities now in force, or which may hereafter be
in force, pertaining to the Leased Premises, and shall faithfully observe in the
use of the Leased Premises all municipal ordinances and state and federal
statutes and regulations now in force or which may hereafter be in force,
including, without limitation, Environmental Laws (as hereinafter defined), and
the Americans with Disabilities Act, 42 U.S.C. xx.xx. 12101-12213 (and any
rules, regulations, restrictions, guidelines, requirements or publications
promulgated or published pursuant thereto, collectively herein referred to as
the "ADA"), whether or not any of the foregoing were foreseeable or
unforeseeable at the time of the execution of this Lease. The judgment of any
court of competent jurisdiction, or the admission of Lessee in any action or
proceeding against Lessee, whether Lessor be a party thereto or not, that any
such requirement, ordinance, statute or regulation pertaining to the Leased
16
Premises has been violated, shall be conclusive of that fact as between Lessor
and Lessee. Within five (5) business days after receipt of notice or actual
knowledge of any violation or alleged violation by Lessee of any Environmental
Law(s), and/or the ADA pertaining to the Complex, any governmental or regulatory
proceedings, investigations, sanctions and/or actions threatened or commenced
with respect to any such violation or alleged violation, and any claim made or
commenced with respect to such violation or alleged violation, Lessee shall
notify Lessor thereof and provide Lessor with copies of any written notices or
information in Lessee's possession. Lessee shall make, at Lessee's sole cost and
expense, any and all Alterations, improvements or non-structural changes that
are required by laws, statutes, ordinances and governmental regulations or
requirements as a result of Lessee's specific use of the Leased Premises or any
Alterations, additions or improvements made by Lessee. If any. alterations,
improvements or structural changes are required to be made to the Building in
general or are applicable to substantially all lessees in the Building without
regard to Lessee's specific use of the Leased Premises or any Alterations,
additions or improvements made by Lessee, then Lessor shall make such
alterations, additions or improvements and the costs thereof shall be included
within Operating Costs pursuant to Section 2.1.
12.2 Condition of Leased Premises. Subject to Lessor's Work, if any, as
referred to in Exhibit D to this Lease, Lessee hereby accepts the Leased
Premises in the condition existing as of the date of occupancy, subject to all
applicable zoning, municipal, county and state laws, ordinances, rules,
regulations, orders, restrictions of record, and requirements in effect during
the Term or any part of the Term hereof regulating the Leased Premises, and,
except as otherwise provided in this Lease, without representation, warranty or
covenant by Lessor, express or implied, as to the condition, habitability or
safety of the Leased Premises, the suitability or fitness thereof for their
intended purposes, or any other matter. Lessor covenants that the Lessor's Work
pursuant to Exhibit D shall be in material compliance with applicable local and
state building codes and ordinances in such manner that any violations or
conditions of non-compliance will not result in the inability of Lessee to be
issued a building permit for Lessee's Work pursuant to Exhibit D ("Code
Compliance"). As of the date of execution of this Lease, Lessor has not received
any notices for items that remain uncured with respect to the following: (i)
notices from any governmental or quasi-governmental agency alleging any
violation of any applicable laws (including ADA and Environmental Laws), rules,
ordinances, regulations, and other applicable requirements pertaining to the
Complex or any portion thereof; (ii) any notices of any claims made or
threatened regarding noncompliance with the ADA or any Environmental Laws; or
(iii) any notices of any governmental or regulatory actions or investigations
instituted or threatened regarding noncompliance with the ADA or any
Environmental Laws as to any portion of the Complex.
12.3 Hazardous Materials.
(a) Hazardous Materials Defined. As used herein, the term "Hazardous
Materials" shall mean any wastes, materials or substances (whether in the form
of liquids, solids or gases, and whether or not air-borne), which are or are
deemed to be pollutants or contaminants, or which are or are deemed to be
hazardous, toxic, ignitable, reactive, corrosive, dangerous, harmful or
injurious, or which present a risk, to public health or to the environment, or
which are or may become regulated by or under the authority of any applicable
local, state or federal laws, judgments, ordinances, orders, rules, regulations,
codes or other governmental restrictions, guidelines or requirements, any
amendments or successor(s) thereto, replacements thereof or publications
promulgated pursuant thereto (collectively "Environmental Laws"), including,
without limitation, any waste, material or substance which is:
(i) defined as "hazardous waste," "extremely hazardous waste," or
"restricted hazardous waste" under Sections 25115, 25117 or 25122.7, or listed
pursuant to Section 25140, of the California Health and Safety Code, Division
20, Chapter 6.5 (Hazardous Waste Control Law);
17
(ii) defined as a "hazardous substance" under Section 25316 of
the California Health and Safety Code, Division 20, Chapter 6.8
(Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act);
(iii) defined as a "hazardous material," "hazardous substance,"
or "hazardous waste" under Section 25501 of the California Health and Safety
Code, Division 20, Chapter 6.95 Hazardous Materials Release Response Plans and
Inventory);
(iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances);
(v) defined as a "waste" or "hazardous substance" under Section
13050 of the California Water Code, Division 7, Chapter 2 (Xxxxxx-Cologne Water
Quality Control Act);
(vi) listed as a chemical known to the State of California to
cause cancer or reproductive toxicity pursuant to Section 25249.8 of the
California Health and Safety Code, Division 20, Chapter 6.6 (Safe Drinking Water
and Toxic Enforcement Act of 1986);
(vii) defined as a "hazardous substance" or "pollutant or
contaminant" pursuant to Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C.ss.9601
et seq.;
(viii) listed as an "extremely hazardous substance," "hazardous
chemical," or "toxic chemical" pursuant to the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C.ss.11001 et seq.;
(ix) listed as a "hazardous substance" in the United States
Department of Transportation Table, 49 C.F.R. 172.101 and amendments thereto, or
by the Environmental Protection Agency (or any successor agency) in 40 C.F.R.
Part 302 and amendments thereto;
(x) defined, listed or designated by regulations promulgated
pursuant to any Environmental Law; or
(xi) any of the following: pesticide; flammable explosive;
petroleum, including crude oil or any fraction thereof; asbestos or
asbestos-containing material; polychlorinated biphenyl; radioactive material; or
urea formaldehyde.
In addition to the foregoing, the term Environmental Laws shall be deemed
to include, without limitation, local, state and federal laws, judgments,
ordinances, orders, rules, regulations, codes and other governmental
restrictions, guidelines and requirements, any amendments and successors
thereto, replacements thereof and publications promulgated pursuant thereto,
which deal with, or otherwise in any manner relate to, air or water quality, air
emissions, soil or ground conditions or other environmental matters of any kind.
(b) Use, etc. of Hazardous Materials. Lessee agrees that during the
Term, there shall be no use, presence, disposal, storage, generation, leakage,
treatment, manufacture, import, handling, processing, release or threatened
release of Hazardous Materials caused by Lessee on, from or under the Leased
Premises except to the extent that, and in accordance with such conditions as,
Lessor may have previously approved in writing. The use, presence, disposal,
storage, generation, leakage, treatment, manufacture, import, handling,
processing, release or threatened release of Hazardous Materials by Lessee are
18
sometimes hereinafter individually or collectively referred to as "Hazardous
Use." It is further Agreed that Lessee shall be entitled to use and store only
those Hazardous Materials which are necessary for Lessee's business, provided
that such usage and storage is in full compliance with Environmental Laws, and
all judicial and administrative decisions pertaining thereto. Lessee shall not
be entitled to install any tanks under, on or about the Leased Premises for the
storage of Hazardous Materials without the express written consent of Lessor,
which may be given or withheld in Lessor's sole arbitrary judgment.
(c) Hazardous Materials Report; When Required . Lessee shall submit to
Lessor a written report with respect to Hazardous Materials ("Report") in the
form prescribed in subparagraph (d) below on the following dates:
(d) Hazardous Materials Report, Contents. The Report shall contain,
without limitation, the following information:
(i) Whether on the date of the Report and (if applicable) during
the period since the last Report there has been any Hazardous Use on, from or
under the Leased Premises.
(ii) If there was such Hazardous Use, the exact identity of the
Hazardous Materials, the dates upon which such materials were brought upon the
Leased Premises, the dates upon which the Hazardous Materials were removed
therefrom, and the quantity, location, use and purpose thereof.
(iii) If there was such Hazardous Use, any governmental permits
maintained by Lessee with respect to such Hazardous Materials, the issuing
agency, original date of issue, renewal dates (if any) and expiration date.
Copies of any such permits and applications therefor shall be attached.
(iv) If there was such Hazardous Use, any governmental reporting
or inspection requirements with respect to such Hazardous Materials, the
governmental agency to which reports are made and/or which conducts inspections,
and the dates of all such reports and/or inspections (if applicable) since the
last Report. Copies of any such reports shall be attached.
(v) Any liability insurance carried by Lessee with respect to
Hazardous Materials, the insurer, policy number, date of issue, coverage
amounts, and date of expiration. Copies of any such policies or certificates of
coverage shall be attached.
(vi) Any notices of violation of Environmental Laws at the Leased
Premises, written or oral, received by Lessee from any governmental agency since
the last Report, the date, name of agency, and description of violation. Copies
of any such written notices shall be attached.
(vii) Any knowledge, information or communication which Lessee
has acquired or received relating to: (x) any enforcement, cleanup, removal or
other governmental or regulatory action threatened or commenced against Lessee
with respect to the Leased Premises pursuant to any Environmental Laws; (y) any
claim made or threatened by any person or entity against Lessee or the Leased
Premises on account of any alleged loss or injury claimed to result from any
alleged Hazardous Use on or about the Leased Premises; or (z) any report, notice
or complaint made to or filed with any governmental agency concerning any
Hazardous Use on or about the Leased Premises. The Report shall be accompanied
by copies of any such claim, report, complaint, notice, warning or other
communication that is in the possession of or is available to Lessee.
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(e) Release of Hazardous Materials: Notification and Cleanup. If at
any time during the Term Lessee knows or believes that any release of any
Hazardous Materials has come or will come to be located upon, about or beneath
the Leased Premises, then Lessee shall immediately, either prior to the release
or following the discovery thereof by Lessee, give verbal and follow-up written
notice of that condition to Lessor. Lessee covenants to investigate, clean up
and otherwise remediate any release of Hazardous Materials caused by Lessee (or
Lessee's agents, contractors, employees and representatives), at Lessee's cost
and expense; such investigation, clean-up and remediation shall be performed
only after Lessee has obtained Lessor's written consent, which shall not be
unreasonably withheld; provided, however, that Lessee shall be entitled to
respond immediately to an emergency without first obtaining Lessor's written
consent. Whenever the term "Lessee" is used in this Section 12 with respect to a
use or release of Hazardous Materials, such term shall include Lessee's agents,
contractors, employees and representatives. All clean-up and remediation shall
be done in compliance with Environmental Laws and to the reasonable satisfaction
of Lessor. Notwithstanding the foregoing, whether or not such work is prompted
by the foregoing notice from Lessee or is undertaken by Lessor for any other
reason whatsoever, Lessor shall have the right, but not the obligation, in
Lessor's sole and absolute discretion, exercisable by written notice to Lessee
at any time, to undertake within or outside the Leased Premises all or any
portion of any investigation, clean-up or remediation with respect to Hazardous
Materials for which Lessee is responsible (or, once having undertaken any of
such work, to cease same, in which case Lessee shall perform the work), all at
Lessee's cost and expense, which shall be paid by Lessee as additional rent
within twenty (20) days after receipt of written request therefor by Lessor (and
which Lessor may require to be paid prior to commencement of any work by
Lessor). No such work by Lessor shall create any liability on the part of Lessor
to Lessee or any other party in connection with such Hazardous Materials or
constitute an admission by Lessor of any responsibility with respect to such
Hazardous Materials. Lessee shall not enter into any settlement agreement,
consent decree or other compromise with respect to any claims relating to any
Hazardous Materials in any way connected to the Leased Premises without first:
(i) notifying Lessor of Lessee's intention to do so and affording Lessor the
opportunity to participate in any such proceedings; and (ii) obtaining Lessor's
reasonable written consent.
(f) Inspection and Testing by Lessor. Lessor shall have the right at
all times during the Term to: (i) upon reasonable prior notice inspect the
Leased Premises, as well as Lessee's books and records; and (ii) conduct tests
and investigations to determine whether Lessee is in compliance with the
provisions of this Section. Except in case of emergency, Lessor shall give
reasonable notice to Lessee before conducting any inspections, tests, or
investigations. The cost of all such inspections, tests and investigations shall
be borne by Lessee, if Lessor reasonably believes them to be necessary. Neither
any action nor inaction on the part of Lessor pursuant to this Section 12.3(f)
shall be deemed in any -way to release Lessee from, or in any way modify or
alter, Lessee's responsibilities, obligations, and/or liabilities incurred
pursuant to Section 12.3 hereof.
12.4 Indemnity. Lessee shall indemnify, hold harmless, and, at Lessor's
option (with such attorneys as Lessor may approve in advance and in writing),
defend Lessor and Lessor's officers, directors, shareholders, trustees,
partners, employees, contractors, agents and mortgagees or other lien holders,
from and against any and all claims, demands, expenses, actions, judgments,
damages (whether consequential, direct or indirect, known or unknown, foreseen
or unforeseen), penalties, fines, liabilities, losses of every kind and nature
(including, without limitation, property damage, diminution in value of Lessor's
interest in the Leased Premises or the Complex, damages for the loss or
restriction on use of any space or amenity within the Leased Premises or the
Complex, damages arising from any adverse impact on marketing space in the
Complex, sums paid in settlement of claims and any costs and expenses associated
with injury, illness or death to or of any person), suits, administrative
proceedings, costs and fees, including, but not limited to, attorneys' and
consultants' fees and expenses, and the costs of cleanup, remediation, removal
and restoration (all of the foregoing being hereinafter sometimes collectively
referred to as "Losses"), arising from or related to any violation by Lessee of
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any of the requirements, ordinances, statutes, regulations or other laws
referred to in this Article, including, without limitation, Environmental Laws,
any breach of the provisions of this Article, or any Hazardous Use on, about or
from the Leased Premises caused by the acts or omissions of Lessee, its agents,
employees and contractors, including without limitation any Hazardous Use or
release of Hazardous Materials, after the Delivery Date until the expiration of
the Term.
12.5 Release and Assumption of Risk.
(a) Lessee, for itself, and its officers, directors, shareholders,
partners, agents, contractors, attorneys, brokers, servants, employees,
sublessees, lessees, invitees, concessionaires, licensees and representatives
(hereinafter referred to as "Releasors"), hereby waives, releases, acquits and
forever discharges Lessor and its officers, directors, trustees, shareholders,
partners, agents, contractors, attorneys, brokers, servants, employees, lessees,
invitees, licensees and representatives (hereinafter referred to as "Releasees")
of and from any and all Losses, which are in any way connected with, based upon,
related to or arising out of (i) any Hazardous Use or Hazardous Materials on or
about the Leased Premises or the Complex, (ii) any violation by or relating to
the Leased Premises or the Complex (or the ownership, use, condition, occupancy
or operation thereof), or by the Releasors or any other persons or entities, of
any Environmental or Wetlands Laws affecting the Leased Premises or the Complex,
or (iii) any investigation, inquiry, order, hearing, action or other proceeding
by or before any governmental agency or any court in connection with any of the
matters referred to in clauses (i) or (ii) above (collectively, the "Released
Matters"), except to the extent caused by the gross negligence or willful
misconduct of the Releasees. Releasors hereby expressly assume any and all risk
of Losses based on or arising out of or pertaining to the Released Matters.
(b) Lessee agrees, represents and warrants that the Released Matters
are not limited to matters which are known, disclosed or foreseeable, and Lessee
waives any and all rights and benefits which are conferred upon Lessee by virtue
of the provisions of Section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
(c) Lessee agrees, represents and warrants that it is familiar with,
has read, understands, and has consulted legal counsel of its choosing with
respect to California Civil Code Section 1542 and Lessee realizes and
acknowledges that factual matters now unknown to it may have given, or may
hereinafter give, rise to Losses which are presently unknown, unanticipated and
unsuspected. Lessee further agrees, represents and warrants that the provisions
of this Section 12.5 have been negotiated and agreed upon in light of that
realization and that Lessee nevertheless hereby intends to release, discharge
and acquit the Releasees from any such unknown Losses which are in any way
related to this Lease or the Complex.
12.6 Indoor Air Quality. To prevent the generation, growth or deposit of
any mold, mildew, bacillus, virus, pollen or other microorganism (collectively,
"Biologicals") and the deposit, release or circulation of any indoor
contaminants, including, but not limited to, emissions from paint, carpet and
drapery treatments, cleaning, maintenance and construction materials and
supplies, pesticides, pressed wood products, insulation, tobacco and other
materials and products (collectively with Biologicals, "Contaminants"), that
could adversely affect the health, safety or welfare of any tenant, employee, or
other occupant of the Complex or their invitees (each, an "Occupant"), Lessee
shall, at Lessee's sole cost and expense, at all times during the Term: (i)
maintain, operate and repair the HVAC system servicing the Leased Premises (to
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the extent that Lessee is otherwise obligated to perform such maintenance,
operation and repair pursuant to this Lease) in a manner consistent with
preventing or minimizing the generation, growth, circulation, release or deposit
of any Contaminants; (ii) maintain the humidity level and the air exchange rate
within the Leased Premises (to the extent that Lessee has control thereof) at a
level recommended to prevent or minimize the growth of any Biologicals and the
circulation of any other Contaminants; (iii) maintain, operate and repair the
Leased Premises in such a manner to prevent or minimize the accumulation of
stagnant water and moisture in planters, kitchen appliances and vessels,
carpeting, insulation, water coolers and any other locations where stagnant
water and moisture could accumulate; and (iv) otherwise maintain, operate and
repair the Leased Premises to prevent the generation, growth, deposit, release
or circulation of any Contaminants. If any governmental entity alleges to Lessee
that health, safety or welfare has been or could be adversely affected by any
such Contaminants, Lessee shall ' notify Lessor in writing within one (1)
business day of the time the allegation is made. Lessor may then elect to engage
the services of an industrial hygiene testing laboratory (or alternatively or
concurrently require Lessee to do the same) to determine whether the cause of
any alleged adverse health effect is or could be attributable to any
Contaminants present within the Leased Premises. Lessee shall be responsible for
all such testing costs and for any consequential damages and costs (including,
without limitation, any third-party claims, loss of rental, remediation, removal
and/or abatement costs, and increases in insurance premiums) resulting from
Lessee's failure to comply in whole or in part with the terms of this Section
12.7. The indemnity set forth in Section 12.5 above shall apply to Lessee's
failure to comply with any of the terms of this Section.
13. SERVICE AND EQUIPMENT
13.1 Climate Control. Lessor shall provide as part of Operating Costs
ventilating and air conditioning ("VAC") to the Leased Premises from 8:00 a.m.
to 6:00 p.m., Monday through Friday and 8:00 a.m. to 1:00 p.m. Saturday (the
"Climate Control Hours") provided that Lessor shall have no responsibility or
liability for failure to supply VAC service when making repairs, alterations or
improvements or when prevented from so doing by strikes or any cause beyond
Lessor's reasonable control or as provided in Section 13.6. Any VAC provided to
the Leased Premises at Lessee's request after the Climate Control Hours shall be
at Lessee's sole cost and expense in accordance with rate schedules promulgated
by Lessor from time to time. Lessee acknowledges that Lessor has installed in
the Building a system for the purpose of climate control. Initially, the use of
fans to circulate outside air or in conjunction with the climate control
equipment outside of the Climate Control Hours shall be charged at Twenty-Four
Dollars ($24) per hour for each additional fan, and the use of chillers outside
of the Climate Control Hours shall be charged at One Hundred Fifty Dollars
($150) per hour, each prorated among those lessees requiring such additional
hours of climate control. Any use of the Leased Premises which exceeds the
Building design load standards may require changes or alterations in the system
or ducts through which the climate control system operates. Any changes or
alterations so occasioned, if such changes can be accommodated by Lessor's
equipment, shall be made by Lessee at its cost and expense but only with the
written consent of Lessor first had and obtained, and in accordance with
drawings and specifications and by a contractor first approved in writing by
Lessor. If Lessee's use of the Leased Premises exceeds the Building design load
standards, such excess use may necessitate the re-balancing of the climate
control equipment in the Leased Premises. In such event, the same will be
performed by Lessor at Lessee's expense. Any charges to be paid by Lessee
hereunder shall be due within ten (10) days of receipt of an invoice from
Lessor, which invoice may precede Lessor's expenditure for the benefit of
Lessee.
13.2 Elevator Service. Subject to Section 13.6, Lessor shall provide
reasonable elevator service (which may be with or without operator at Lessor's
option) on a twenty-four (24) hour basis, three hundred sixty-five (365) days
per year.
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13.3 Cleaning Public Areas. Lessor shall maintain and keep clean the street
level lobbies, sidewalks, truck dock, public corridors and other public portions
of the Building.
13.4 Refuse Disposal. Lessee shall pay Lessor, within ten (10) days of
being billed therefor, for the removal from the Leased Premises and the Building
of such refuse and rubbish of Lessee as shall exceed that ordinarily accumulated
daily in the routine of business office occupancy.
13.5 Janitorial Service. Lessor shall provide cleaning and janitorial
service in and about the Complex and Leased Premises in accordance with Exhibit
H, attached hereto.
To the extent that Lessee shall require cleaning and/or janitorial service
in excess of that set forth in Exhibit H (hereinafter referred to as "Special
Cleaning Service") Lessor may, upon reasonable advance notice from Lessee, elect
to furnish such Special Cleaning Service and Lessee agrees to pay Lessor, within
ten (10) days of being billed therefor, Lessor's reasonable charge for providing
such additional service. If Lessor does not elect to provide said Special
Cleaning Service, Lessee may perform or provide for said Special Cleaning
Service, at Lessee's sole cost and expense.
13.6 Interruptions. Lessor does not warrant that any of the services
referred to above or any other services and/or utilities which Lessor may supply
or are supplied will be free from interruption and/or the need for maintenance
and repairs or replacement. Lessee acknowledges that any one or more such
services may be suspended or reduced by reason of repairs, alterations or
improvements necessary to be made, by strikes or accidents, by any cause beyond
the reasonable control of Lessor, or by orders or regulations of any federal,
state, county or municipal authority. In addition, Lessor shall have no
liability for damages arising from, and Lessor does not warrant that Lessee's
use of any Lines will be free from: (i) any eavesdropping or wire-tapping by
unauthorized parties; (ii) any failure of any Lines to satisfy Lessee's
requirements; or (iii) any shortages, failures, variations, interruptions,
disconnections, loss or damage caused by installation, maintenance, replacement,
use or removal of Lines by or for other occupants of the Complex, by any failure
of the environmental conditions or the power supply for the Building to conform
to any requirements for the Lines or any associated equipment or any other
problems associated with any Lines by any other cause.
Any such interruption or suspension of services shall not be deemed an
eviction or disturbance of Lessee's use and possession of the Leased Premises or
any part thereof, nor render Lessor liable to Lessee for damages by abatement of
Rent or otherwise, nor relieve Lessee of performance of Lessee's obligations
under this Lease.
13.7 Electrical Service. Lessee, at its own cost and expense, shall install
a meter or check meter to monitor all electricity used by Lessee in the Leased
Premises. Lessee shall pay all electricity charges applicable to the Leased
Premises.
13.8 Building Upgrade Work. Lessor has advised Lessee that Lessor may make
certain upgrades and improvements to the Common Areas and central systems of the
Complex ("Building Upgrade Work"). Lessee acknowledges that the performance of
the Building Upgrade Work may result in noise, dust and other temporary
inconveniences or interruptions to the conduct of normal business activity in
the Building. Lessor will utilize reasonable measures to reduce noise levels
associated with the performance of the Building Upgrade Work; provided, however,
the Building Upgrade Work shall in no event constitute a constructive eviction
or serve as a basis for any abatement or reduction in rent.
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14. WASTE
14.1 Waste or Nuisance. Lessee shall not commit, or suffer to be committed,
any waste upon the Leased Premises, or any nuisance, or other act or thing which
may disturb the quiet enjoyment of any other lessee or occupant of the Complex
in which the Leased Premises are located.
15. ALTERATIONS
15.1 Consent of Lessor; Ownership. Lessee shall not make, or suffer to be
made, any Alterations to the Leased Premises, the Building, or the Complex,
and/or Lines, systems and facilities therein, or any part thereof, without the
written consent of Lessor first had and obtained. Any additions to or
Alterations of the Leased Premises (except trade fixtures) shall, immediately
upon being made, constitute a part of the realty and Lessor's property, and
shall, at the expiration or earlier termination of this Lease, remain upon the
Leased Premises without compensation to Lessee. Attached hereto as Exhibit K is
a list of Tenant's trade fixtures. Lessee shall have the right to remove its
trade fixtures placed upon the Leased Premises provided that Lessee restores the
Leased Premises as indicated below. Any and all costs incurred by Lessor,
whether in complying with laws, governmental requirements or otherwise, as a
result of any Alterations, or as a result of request by Lessee for increased
Lines or other utility capacity above that presently existing shall be paid by
Lessee within ten (10) days after demand therefor by Lessor.
15.2 Lessee Alterations. Any alterations, additions, improvements or
installations performed by Lessee (collectively "Alteration" or "Alterations")
shall be subject to strict conformity with the following requirements:
(a) All Alterations shall be at the sole cost and expense of Lessee;
(b) Prior to commencement of any work of Alteration, Lessee shall
submit detailed plans and specifications, including working drawings
(hereinafter referred to as "Plans"), of the proposed Alterations, which shall
be subject to the consent of Lessor in accordance with the terms of Section 15.1
above;
(c) Following approval of the Plans by Lessor, Lessee shall give
Lessor at least ten (10) days' prior written notice of commencement of work in
the Leased Premises so that Lessor may post notices of non-responsibility in or
upon the Leased Premises as provided by law;
(d) No Alterations shall be commenced without Lessee having previously
obtained all appropriate permits and approvals required by and of governmental
agencies;
(e) All Alterations shall be performed in a skillful and workmanlike
manner, consistent with the Building Standards set forth as Exhibit G, and
pursued with diligence in accordance with the Plans previously approved by
Lessor and in full accord with all applicable laws and ordinances. All material,
equipment, and articles incorporated in the Alterations are to be new and of
recent manufacture and of the most suitable grade for the purpose intended.
Lessee's contractor shall maintain all of the insurance reasonably required by
Lessor, including, without limitation, commercial general liability, workers'
compensation, builder's risk and course of construction insurance. The limits of
such insurance shall be the same as those specified in Article 18;
(f) Lessee must obtain the prior written approval from Lessor for
Lessee's contractor before the commencement of the work. Lessor may require that
Lessee use subcontractors designated by Lessor as to specified portions of the
work;
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(g) As a condition of approval of the Alterations, Lessor may require
performance and labor and materialmen's payment bonds issued by a surety
approved by Lessor, in a sum equal to the cost of the Alterations guarantying
the completion of the Alterations free and clear of all liens and other charges
in accordance with the Plans. Such bonds shall name Lessor as beneficiary;
(h) The Alterations must be performed in a manner such that they will
not interfere with the quiet enjoyment of the other lessees in the Complex;
(i) Lessor shall have the right to condition any approval of the
Alterations upon (i) submission by Lessee of a Report with respect to Hazardous
Materials, and/or (ii) the performance by Lessee at Lessee's cost and expense of
such investigation, clean-up and remediation with respect to Hazardous Materials
as Lessor may request, in Lessor's sole and absolute discretion; provided,
however, that Lessor shall have the right, but not the obligation, to undertake
all or any portion of such investigation, clean-up or remediation at Lessee's
cost and expense in accordance with the provisions of Section 12.3(e) above.
Lessee acknowledges and agrees that Lessor shall have the right, in its sole and
absolute discretion, to disapprove the making of any such Alterations based upon
the results of any investigation with respect to Hazardous Materials, and the
impact of such Alterations on the presence of Hazardous Materials.
15.3 Liens. Lessee shall keep the Leased Premises and the Complex in which
the Leased Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by Lessee. In the event a
mechanic's or other lien is filed against the Leased Premises or the Complex of
which the Leased Premises form a part as a result of a claim arising through
Lessee, Lessor may demand that Lessee furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to at least one hundred fifty percent
(150%) of the amount of the contested lien claim or demand, indemnifying Lessor
against liability for the same and holding the Leased Premises free from the
effect of such lien or claim. Such bond must be posted within ten (10) days
following notice from Lessor. In addition, Lessor may require Lessee to pay
Lessor's attorneys' fees and costs in participating in any action to foreclose
such lien if Lessor shall decide it is to its best interest to do so. Lessor may
pay the claim prior to the enforcement thereof, in which event Lessee shall
reimburse Lessor in full, including attorneys' fees, for any such expense, as
additional rent, with the next due rental.
15.4 Restoration. Lessee shall, at Lessee's sole cost and expense, return
the Leased Premises to Lessor at the expiration or earlier termination of this
Lease in good and sanitary order, condition and repair, free of rubble and
debris, broom clean, reasonable wear and tear excepted. In addition, within
thirty (30) days after request of Lessee, Lessor shall notify Lessee as to
whether Lessor considers any such Alterations to be specialized and non-reusable
areas, such as classrooms, manufacturing areas and storage racks, and whether
Lessor desires such specialized and non-reusable areas of the Leased Premises
restored to its condition prior to the making of such permitted Alterations. In
the event Lessor requires restoration, Lessor shall, at least three (3) months
prior to Lease expiration, provide Lessee with an estimate of the costs to so
restore the Leased Premises ("Restoration Costs") and Lessee shall pay to
Lessor, as additional Rent, the entire amount of the Restoration Costs no later
than ten (10) days prior to Lease expiration. The foregoing restoration of the
Leased Premises shall be performed after the Lease expiration. All damage to the
Leased Premises caused by the removal of such trade fixtures and other personal
property that Lessee is permitted to remove under the terms of this Lease and/or
such restoration shall be repaired by Lessee at its sole cost and expense prior
to termination. Lessee's obligations under this Section 15.4 shall apply to the
parking garage, roof and other areas of the Complex impacted by Lessee's use
and/or occupancy of the Complex or any part thereof.
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16. PROPERTY INSURANCE
16.1 Lessor's Insurance. Lessor shall, to the extent available, procure and
maintain at all times during the Term an "All Risk" or "Special Form" policy or
policies of insurance covering loss or damage to the Building and the Complex in
an amount sufficient to exceed minimum coinsurance requirements of such policy
(exclusive of Lessee's trade fixtures, inventory, personal property, Tenant
Improvements and equipment), providing protection against all perils included
within the classification of fire and extended coverage, vandalism coverage and
malicious mischief, sprinkler leakage, water damage, and special extended
coverage on Building. Additionally, Lessor may (but shall not be required to)
carry: (i) bodily injury and property damage liability insurance and/or excess
liability coverage insurance; (ii) earthquake and/or flood damage insurance; or
(iii) rental income insurance at Its election or if required by its lender from
time to time during the Term; or (iv) any other insurance as Lessor or its
lender reasonably deem appropriate, in such amounts and with such limits as
Lessor or its lender may deem appropriate. The costs of all such insurance shall
be included in Operating Costs.
16.2 Use of Premises. No use shall be made or permitted to be made by
Lessee on the Leased Premises, nor acts done, which will increase the existing
rate of insurance upon the Building in which the Leased Premises are located or
upon any other Building the Complex or cause the cancellation of any insurance
policy covering the Building, or any part thereof, nor shall Lessee sell, or
permit to be kept, used or sold, in or about the Leased Premises, any article
which may be prohibited by the standard form of "All Risk" fire insurance
policies. Lessee shall, at its sole cost and expense, comply with any and all
requirements pertaining to the Leased Premises, of any insurance organization or
company, necessary for the maintenance of reasonable property damage and
commercial general liability insurance, covering the Leased Premises, the
Building, or the Complex.
16.3 Increase in Premiums. Lessee agrees to pay to Lessor, as additional
Rent, any increase in premiums on policies which may be carried by Lessor on the
Leased Premises, the Building or the Complex, or any blanket policies which
include the Building or Complex, covering damage thereto and loss of Rent caused
by fire and other perils above the rates for the least hazardous type of
occupancy for office use. Lessee further agrees to pay Lessor, as additional
Rent, any increases in such premiums resulting from the nature of Lessee's
occupancy or any act or omission of Lessee. All payments of additional Rent by
Lessee to Lessor pursuant to this Section 16.3 shall be made within ten (10)
days after receipt by Lessee of Lessor's billing therefor.
16.4 Personal Property Insurance. Lessee shall maintain in full force and
effect on all of its fixtures, furniture, equipment and other business personal
property in the Leased Premises a policy or policies providing protection
against any peril included within the classification "All Risk" to the extent of
at least ninety percent (90%) of their replacement cost, or that percentage of
the replacement cost required to negate the effect of a coinsurance provision,
whichever is greater. No such policy shall have a deductible in a greater amount
than One Thousand Dollars ($1,000). Lessee shall also insure in the same manner
the physical value of all its Tenant Improvements and Alterations in the Leased
Premises including the Lessee's Work. During the Term, the proceeds from any
such policy or policies of insurance shall be used for the repair or replacement
of the fixtures, equipment, and Tenant Improvements so insured. Lessor shall
have no interest in said insurance, and will sign all documents necessary or
proper in connection with the settlement of any claim or loss by .Lessee. Lessee
shall also maintain insurance for all plate glass upon the Leased Premises. All
insurance specified in this Section 16.4 to be maintained by Lessee shall be
maintained by Lessee at its sole cost.
17 INDEMNIFICATION, WAIVER OF CLAIMS AND SUBROGATION
17.1 Waiver of Subrogation. Lessor and Lessee release each other, and their
respective authorized representatives, from any claims for damage to the Leased
Premises and the Building and other improvements in which the Leased Premises
are located, and to the furniture, fixtures, and other business personal
property, Lessee's improvements and Alterations of either Lessor or Lessee, in
26
or on the Leased Premises and the Building and other improvements in which the
Leased Premises are located, including loss of income, that are caused by or
result from risks insured or required under the terms of this Lease to be
insured against under any property insurance policies carried or to be carried
by either of the parties.
17.2 Form of Policy. Each party shall cause each such insurance policy
obtained by it to provide that the insurance company waives all rights of
recovery by way of subrogation against either party in connection with any
damage covered by such policy. Neither party shall be liable to the other for
any damage caused by any peril included within the classification "All Risk"
which is insured against under any property insurance policy carried under the
terms of this Lease.
17.3 Indemnity. Lessee, as a material part of the consideration to be
rendered to Lessor, shall indemnify, defend, protect and hold harmless Lessor
against all actions, claims, demands, damages, liabilities, losses, penalties,
or expenses of any kind which may be brought or imposed upon Lessor or which
Lessor may pay or incur by reason of injury to person or property or business,
from whatever cause, all or in any way connected with the acts ' and omissions
of Lessee, and the condition or use of the Leased Premises, or the improvements
or personal property therein or thereon, including without limitation any
liability or injury to the person or property or business of Lessee, its agents,
officers, employees or invitees. Lessee agrees to indemnify, defend and protect
Lessor and hold it harmless from any and all liability, loss, cost or obligation
on account of, or arising out of, any such injury or loss however occurring,
including breach of the provisions of this Lease and the negligence of the
parties hereto. Nothing contained herein shall obligate Lessee to indemnify
Lessor against its own negligence or willful acts, for which Lessor shall
indemnify Lessee.
17.4 Defense of Claims. In the event any action, suit or proceeding is
brought against Lessor by reason of any such occurrence, Lessee, upon Lessor's
request, will at Lessee's expense resist and defend such action, suit or
proceeding, or cause the same to be resisted and defended by counsel designated
either by Lessee or by the insurer whose policy covers the occurrence and in
either case approved by Lessor. The obligations of Lessee under this Section
arising by reason of any occurrence taking place during the Term shall survive
any termination of this Lease.
17.5 Waiver of Claims. Lessee, as a material part of the consideration to
be rendered to Lessor, hereby waives all claims against Lessor for damages or
injury, as described below, from any cause arising at any time, including breach
of the provisions of this Lease and the negligence of the parties hereto:
(a) damages to goods, wares, merchandise and loss of business in, upon
or about the Leased Premises; and
(b) (notwithstanding anything to the contrary contained in this Lease,
including, without limitation, the definition of Operating Costs in Section 2.1,
which includes "policing") damages to goods, wares, merchandise and loss of
business, in, upon or about the Leased Premises or the Complex, and injury to
Lessee, its agents, employees invitees or third persons in, upon or about the
Leased Premises or the Complex, where such damage or injury results from
Lessor's failure to police or provide security for the Complex or Lessor's
negligence in connection therewith.
Lessee expressly acknowledges and agrees that the provisions of Section
12.5(b) above apply fully with respect to the matters waived pursuant to this
Section 17.5, and, for such purpose, the term Released Matters, as used in
Section 12.5(b), shall be deemed to include the matters waived pursuant to this
Section 17.5.
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17.6 References. Wherever in this Article the term Lessor or Lessee is used
and such party is to receive the benefit of a provision contained in this
Article, such term shall refer not only to that party but also to its officers,
directors, shareholders, employees, contractors, partners, agents and mortgagees
or other lien holders.
18. LIABILITY INSURANCE
18.1 Lessee's Insurance. Lessee shall, at Lessee's expense, obtain and keep
in force during the Term, a commercial general liability insurance policy
insuring Lessee against the risks of, bodily injury and property damage,
personal injury, contractual liability, completed operations, products
liability, host liquor liability, owned and non-owned automobile liability
arising out of the ownership, use, occupancy or maintenance of the Leased
Premises and all areas appurtenant thereto. Such insurance shall be a combined
single limit policy in an amount not less than One Million Dollars ($1,000,000)
per occurrence with a Two Million Dollar ($2,000,000) annual aggregate; and an
umbrella policy of Three Million Dollars ($3,000,000) for any one occurrence.
Lessor and any lender or other party in interest designated by Lessor shall be
named as additional insured(s). The policy shall contain cross liability
endorsements and shall insure performance by Lessee of the indemnity provisions
of this Lease; shall be primary, not contributing with, and not in excess of
coverage which Lessor may carry; shall state that Lessor is entitled to recovery
for the negligence of Lessee even though Lessor is named as an additional
insured; shall provide for severability of interest; shall provide that an act
or omission of one of the insured or additional insureds which would void or
otherwise reduce coverage shall not void or reduce coverages as to the other
insured or additional insured; and shall afford coverage after the Term (by
separate policy or extension if necessary) for all claims based on acts,
omissions, injury or damage which occurred or arose (or the onset of which
occurred or arose) in whole or in part during the Term. The limits of said
insurance shall not limit any liability of Lessee hereunder. Not more frequently
than every three (3) years, if, in the reasonable opinion of Lessor, the amount
of liability insurance required hereunder is not adequate, Lessee shall promptly
increase said insurance coverage as required by Lessor.
18.2 Workers' Compensation Insurance. Lessee shall carry Workers'
Compensation insurance as required by law, including an employers' liability
endorsement.
18.3 Rent Loss/Business Interruption Insurance. Lessee shall carry Rental
Loss/Business Interruption insurance covering rental loss or business
interruptions resulting from those risks referred to in Section 18.1 in an
amount equal to all Rent payable under this Lease for a period of twelve (12)
months at the then current rate of charges.
19. INSURANCE POLICY REQUIREMENTS
19.1 General Requirements. All insurance policies required to be carried by
Lessee (except Lessee's business personal property insurance) hereunder shall
conform to the following requirements:
(a) The insurer in each case shall carry a designation in "Best's
Insurance Reports" as issued from time to time throughout the Term as follows:
policyholders' rating of A; financial rating of not less than VII;
(b) The insurer shall be qualified to do business in the state in
which the Leased Premises are located;
(c) The policy shall be in a form and include such endorsements as are
acceptable to Lessor;
(d) Certificates of insurance shall be delivered to Lessor at
commencement of the Term and certificates of renewal at least thirty (30) days
prior to the expiration of each policy;
(e) Each policy shall require that Lessor be notified in writing by
the insurer at least thirty (30) days prior to any cancellation or expiration of
such policy, or any reduction in the amounts of insurance carried.
20. LESSEE INSURANCE DEFAULT
20.1 Rights of Lessor. In the event that Lessee falls to obtain any
insurance required of it under the terms of this Lease, Lessor may, at its
option, but is not obligated to, obtain such insurance on behalf of Lessee and
xxxx Lessee, as additional rent, for the cost thereof. Payment shall be due
within ten (10) days of receipt of the billing therefor by Lessee.
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21. FORFEITURE OF PROPERTY AND LESSOR'S LIEN
21.1 Removal of Personal Property. Lessee agrees that as of the date of
termination of this Lease or repossession of the Leased Premises by Lessor, by
way of default or otherwise, it shall remove all personal property to which it
has the right to ownership pursuant to the terms of this Lease. Any and all such
property of Lessee not removed by such date shall, at the option of Lessor,
irrevocably become the sole property of Lessor. Lessee waives all rights to
notice and all common law and statutory claims and causes of action which it may
have against Lessor subsequent to such date as regards the storage, destruction,
damage, loss of use and ownership of the personal property affected by the terms
of this Article. Lessee acknowledges Lessor's need to relet the Leased Premises
upon termination of this Lease or repossession of the Leased Premises and
understands that the forfeitures and waivers provided herein are necessary to
aid said reletting, and to prevent Lessor incurring a loss for inability to
deliver the Leased Premises to a prospective lessee.
22. MAINTENANCE AND REPAIRS
22.1 Lessor's Obligations. Subject to the other provisions of this Lease
imposing obligations in this respect upon Lessee, Lessor shall repair, replace
and maintain in commercially reasonable condition the external and Structural
parts of the Complex which do not comprise a part of the Leased Premises and are
not leased to others, janitor and equipment closets and shafts within the Leased
Premises designated by Lessor for use by it in connection with the operation and
maintenance of the Complex, and all Common Areas. Lessor shall maintain and
repair equipment, Lines, facilities or systems of the Building or Complex which
are outside of the Leased Premises or which do not exclusively serve the Leased
Premises. Lessor shall perform such repairs, replacements and maintenance with
reasonable dispatch, in a good and workmanlike manner; but Lessor shall not be
liable for any damages, direct, indirect or consequential, or for damages for
personal discomfort, illness or inconvenience of Lessee by reason of failure of
equipment, Lines, facilities or systems or reasonable delays in the performance
of such repairs, replacements and maintenance, unless caused by the negligence
of Lessor, its servants, agents, or employees. The cost for such repairs,
maintenance and replacement shall be included in Operating Costs in accordance
with Section 2.1 hereof.
22.2 Negligence of Lessee. If the Building, the elevators, escalators,
boilers, engines, pipes or apparatus used for the purpose of climate control of
the Building or operating the elevators, or escalators, or if the water pipes,
drainage pipes, electric lighting or other equipment, Lines, systems and/or
facilities of the Building or the Complex, or the roof or the outside walls of
the Building, fall into a state of disrepair or become damaged or destroyed
through the negligence, carelessness or misuse of Lessee, its agents, employees
or anyone permitted by it to be in the Complex, or through it in any way, the
cost of the necessary repairs, replacements or Alterations shall be borne by
Lessee who shall pay the same to Lessor as additional charges within ten (10)
days of demand by Lessor.
22.3 Lessee's Obligations. Lessee shall repair the Leased Premises,
including without limiting the generality of the foregoing, all interior
partitions and walls, fixtures, Leasehold Improvements and Alterations in the
Leased Premises and all electrical and telephone outlets and conduits, fixtures
and shelving, and special mechanical and electrical equipment which equipment is
not a normal part of the Leased Premises installed by or for Lessee, reasonable
wear and tear, damage with respect to which Lessor has an obligation to repair
as provided in Section 22.1 and Section 23.2 hereof only excepted. Prior to
commencement of any repairs, Lessee shall give Lessor at least ten (10) days'
prior written notice thereof so that Lessor may post notices of
non-responsibility in or upon the Leased Premises as provided by law. Lessee
must obtain the prior written approval from Lessor for Lessee's contractor
before the commencement of the repair. Lessor may require that Lessee use a
specific contractor for certain types of repairs. Lessor may enter and view the
state of repair and Lessee will repair in a good and workmanlike manner
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according to notice in writing. Notwithstanding the foregoing, Lessee shall not
make any repairs to the equipment, Lines, facilities or systems of the Building
or Complex which are outside of the Leased Premises or which do not exclusively
serve the Leased Premises.
22.4 Cleaning. Lessee agrees at the end of each business day to leave the
Leased Premises in a reasonably clean condition for the purpose of the
performance of Lessor's cleaning services referred to herein. Lessee shall
maintain the appearance of the Leased Premises in a manner consistent with the
character, use and appearance of the Complex. Lessor shall follow Lessee's
security guidelines with respect to janitorial services, or, at Lessor's option,
Lessor shall require Lessee to be responsible for its own janitorial service.
22.5 Waiver. Lessee waives all rights it may have under law to make repairs
at Lessor's expense.
22.6 Acceptance. Except as to the construction obligations of Lessor for
the Lessor's Work, if any, stated in Exhibit D to this Lease, Lessee shall
accept the Leased Premises in "as is" condition as of the date of execution of
this Lease by Lessee, and Lessee acknowledges that the Leased Premises in such
condition are in good and sanitary order, condition and repair. Lessee
acknowledges that generally there shall be no floor/ceiling coring or
penetrations due to the post tension floor slab structural system of the
Building. However, Lessor agrees that Lessee may undertake corings for
installation of its vault subject to prior written approval by Lessor of the
location, size and type of corings.
23. DESTRUCTION
23.1 Rights of Termination. In the event the Leased Premises suffers (a) an
Uninsured Property Loss (as hereinafter defined) or (b) a property loss which
cannot be repaired within one hundred twenty (120) days from the date of
destruction under the laws and regulations of state, federal, county or
municipal authorities, or other authorities with jurisdiction, Lessor may
terminate this Lease as at the date of the damage upon written notice to Lessee
following the property loss. For purposes of this Lease, the term "Uninsured
Property Loss" shall mean any loss arising from a peril not covered by the
standard form of an "All Risk" or "Special Form" property insurance policy.
23.2 Repairs. In the event of a property loss which may be repaired within
one hundred twenty (120) days from the date of the damage, or, in the
alternative, in the event Lessor does not elect to terminate this Lease under
the terms of Section 23.1 above, then this Lease shall continue in full force
and effect and Lessor shall forthwith undertake to make such repairs to
reconstitute the Leased Premises to as near the condition as existed prior to
the property loss as practicable but not including any construction originally
performed by Lessee (including Lessee's Work) or subsequently undertaken by
Lessee, but shall include solely property constructed by Lessor (including
Lessor's Work) prior to the commencement of the Term. Notwithstanding anything
to the contrary contained herein, in the event of a property loss which is not
repaired by Lessor within two hundred ten (210) days from the date of damage,
Lessee should have the right to terminate this Lease by written notice to Lessor
within thirty (30) days after the aforesaid 210-day period but in no event later
than Lessor's completion of repairs. Such partial destruction shall in no way
annul or void this Lease except that Lessee shall be entitled to a proportionate
reduction of Minimum Rent following the property loss and until the time the
Leased Premises are restored. Such reduction shall be pro rata based upon the
number of usable square feet of the Leased Premises damaged and not occupied.
Lessor's obligations to restore shall in no way include any construction
originally performed by Lessee or subsequently undertaken by Lessee, but shall
include solely that property constructed by Lessor prior to commencement of the
Term,
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23.3 Repair Costs. The cost of any repairs to be made by Lessor, pursuant
to Section 23.2 of this Lease, shall be paid by Lessor utilizing available
insurance proceeds. Lessee shall reimburse Lessor upon completion of the repairs
for any deductible for which no insurance proceeds will be obtained under
Lessor's insurance policy to the extent such deductible is not reimbursed as an
Operating Cost, or if other premises are also repaired, a pro rata share based
on total costs of repair equitably apportioned to the Leased Premises. Lessee
shall, however, not be responsible to pay any deductible or its share of any
deductible to the extent that Lessee's payment would be in excess of Ten
Thousand Dollars ($10,000) if Lessee's consent has not been received by Lessor,
unless such denial of consent by Lessee is unreasonable in the reasonable
judgment of Lessor's insurance consultant.
23.4 Waiver. Lessee hereby waives all statutory or common law rights of
termination in respect to any partial destruction or property loss which Lessor
is obligated to repair or may elect to repair under the terms of this Article.
Further, in event of a property loss occurring during the last two (2) years of
the original Term hereof or of any extension, Lessor need not undertake any
repairs and may cancel this Lease unless Lessee has the right under the terms of
this Lease to extend the Term for an additional period of at least five (5)
years and does so within thirty (30) days of the date of the property loss.
23.5 Lessor's Election. In the event that the Complex or Building in which
the Leased Premises are situated be destroyed to the extent of not less than (i)
thirty-three and one-third percent (33-1/3%) of the replacement cost thereof in
the event of an insured property loss, or (ii) more than Five Hundred Thousand
Dollars ($500,000) in replacement construction costs in the case of an Uninsured
Property Loss, Lessor may elect to terminate this Lease, whether the Leased
Premises be injured or not, in the same manner as in Section 23.1 above. At all
events, a total destruction of the Complex of which the Leased Premises form a
part, or the Leased Premises itself, shall terminate this Lease.
24. CONDEMNATION
24.1 Definitions.
(a) "Condemnation" means (i) the exercise of any governmental power,
whether by legal proceedings or otherwise, by a Condemnor (as defined below)
and/or (ii) a voluntary sale or transfer by Lessor to any Condemnor, either
under threat of condemnation or while legal proceedings for condemnation are
pending.
(b) "Date of Taking" means the date the Condemnor has the right to
possession of the property being condemned.
(c) "Award" means all compensation, sums or anything of value awarded,
paid or received on a total or partial Condemnation.
(d) "Condemnor" means any public or quasi-public authority, or private
corporation or individual, having the power of Condemnation.
24.2 Total Taking. If the Leased Premises are totally taken by
Condemnation, this Lease shall terminate on the Date of Taking.
24.3 Partial Taking; Common Areas.
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(a) If any portion of the Leased Premises is taken by Condemnation,
this Lease shall remain in effect, except that Lessee can elect to terminate
this Lease if thirty-three and one-third percent (33-1/3%) or more of the total
number of square feet in the Leased Premises is taken.
(b) If any part of the Common Areas of the Complex is taken by
Condemnation and as a consequence thereof, the Complex is not in compliance with
applicable governmental codes and requirements, then Lessor shall have the
election to terminate this Lease pursuant to this Section.
(c) If fifty percent (50%) or more of the Building in which the Leased
Premises are located is taken, Lessor shall have the election to terminate this
Lease in the manner prescribed herein.
24.4 Termination or Abatement. If either party elects to terminate this
Lease under the provisions of Section 24.3 (such party is hereinafter referred
to as the "Terminating Party"), it must terminate by giving notice to the other
party (the "Nonterminating Party") within thirty (30) days after the nature and
extent of the taking have been finally determined (the "Decision Period"). The
Terminating Party shall notify the Nonterminating Party of the date of
termination, which date shall not be earlier than sixty (60) days after the
Terminating Party has notified the Nonterminating Party of its election to
terminate nor later than the Date of Taking. If Notice of Termination is not
given within the Decision Period, the Lease shall continue in full force and
effect except that Minimum Rent shall be reduced by subtracting therefrom an
amount calculated by multiplying the Minimum Rent in effect prior to the taking
by a fraction the numerator of which is the number of square feet taken from the
Leased Premises and the denominator of which is the number of square feet in the
Leased Premises prior to the taking.
24.5 Restoration. If there is a partial taking of the Leased Premises and
this Lease remains in full force and effect pursuant to this Article, Lessor, at
its cost, shall accomplish all necessary restoration so that the Leased Premises
is returned as near as practical to its condition immediately prior to the date
of the taking, but in no event shall Lessor be obligated to expend more for such
restoration than the extent of funds actually paid to Lessor by the Condemnor.
24.6 Award. Any award arising from the Condemnation or the settlement
thereof shall belong to and be paid to Lessor except that Lessee shall receive
from the award compensation for the following if specified in the award by the
Condemnor, so long as it does not reduce Lessor's award in respect of the real
property: Lessee's trade fixtures, tangible personal property, loss of business
and relocation expenses. At all events, Lessor shall be solely entitled to all
award in respect of the real property, including the bonus value of the
leasehold. Lessee shall not be entitled to any award until Lessor has received
the above sum in full.
25. ASSIGNMENT AND SUBLETTING
25.1 Lease is Personal. The purpose of this Lease is to transfer possession
of the Leased Premises to Lessee for Lessee's personal use in return for certain
benefits, including rent, to be transferred to the Lessor. Lessee's right to
assign or sublet as stated in this Article is subsidiary and incidental to the
underlying purpose of this Lease. Lessee acknowledges and agrees that it has
entered into this Lease in order to acquire the Leased Premises for its own
personal use and not for the purpose of obtaining the right to convey the
leasehold to others.
25.2 "Transfer of the Leased Premises" Defined. The terms "Transfer of the
Leased Premises" or "Transfer" as used herein shall include any assignment of
all or any part of this Lease (including assignment by operation of law),
subletting of all or any part of the Leased Premises or transfer of possession,
or granting of the right of possession or contingent right of possession of all
32
or any portion of the Leased Premises including, without limitation, license,
concession, mortgage, devise, hypothecation, agency, franchise or management
agreement, or suffering any other person (the agents and servants of Lessee
excepted) to occupy or use the Leased Premises or any portion thereof. If Lessee
is a corporation which is not deemed a public corporation, or is an
unincorporated association or partnership, or Lessee consists of more than one
party, the transfer, assignment or hypothecation of any stock or interest in
such corporation, association, partnership or ownership interest, in the
aggregate in excess of twenty-five percent (25%), shall be deemed a Transfer of
the Leased Premises. Lessor acknowledges that Lessee is a public corporation and
is not subject to the preceding sentence.
25.3 No Transfer Without Consent. Lessee shall not suffer a Transfer of the
Leased Premises or any interest therein, or any part thereof, or any right or
privilege appurtenant thereto without the prior written consent of Lessor, and a
consent to one Transfer of the Leased Premises shall not be deemed to be a
consent to any subsequent Transfer of the Leased Premises. Any Transfer of the
Leased Premises without such consent shall (i) be voidable, and (ii) terminate
this Lease, in either case, at the option of Lessor.
25.4 When Consent Granted.
(a) The consent of Lessor to a Transfer may not be unreasonably
withheld, provided that it is agreed to be reasonable for Lessor to consider any
of the following reasons, which list is not exclusive, in electing to consent or
to deny consent:
(i) Financial strength of the proposed Transferee is not at least
equal to that of Lessee at the time of execution of this Lease;
(ii) A proposed Transferee which is in good standing with
regulatory agencies.
(iii) A proposed Transferee whose impact on the common facilities
or the other occupants of the Complex would be disadvantageous to the operation
and management of the Complex including increasing the cost of operation and
management;
(iv) A proposed Transferee whose use presents a risk of violation
of Article 12;
(v) A proposed Transferee whose occupancy will require a
variation in the terms of this Lease (for example, a variation in the use
clause);
(vi) That there be no uncured notices of default under the terms
of this Lease; or
(vii) A proposed Transferee who is or is likely to be, or whose
business is or is likely to be, subject to compliance with additional laws or
other governmental requirements beyond those to which Lessee or Lessee's
business is subject.
(b) Notwithstanding the foregoing, Lessee shall have the right,
without the consent of Lessor, but upon prior written notice to Lessor, to
assign this Lease to a company incorporated or to be incorporated by Lessee,
provided that Lessee owns or beneficially controls all the issued and
outstanding shares of capital stock of the company; further provided, however,
that in the event that at any time following such assignment, Lessee wishes to
sell, mortgage, devise, hypothecate or in any other manner whatsoever transfer
any portion of the ownership or beneficial control of the issued and outstanding
shares in the capital stock of such company, such transaction shall be deemed to
constitute a Transfer and shall be subject to all of the provisions of this
Article 25 with respect to a Transfer of the Leased Premises including, by
specific reference, the provisions of Section 25.8.
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25.5 Procedure for Obtaining Consent.
(a) Lessor need not commence its review of any proposed Transfer, or
respond to any request by Lessee with respect to such, unless and until it has
received from Lessee adequate descriptive information concerning the Transferee,
the business to be conducted by the Transferee, the Transferee's financial
capacity, and such other information as may reasonably be required in order to
form a prudent judgment as to the acceptability of the proposed Transfer,
including, without limitation, the following:
(i) Reasonable financial information concerning the proposed
Transferee including the past two years' audited annual Balance Sheets and
Profit and Loss statements certified correct by a Certified Public Accountant;
(ii) Banking references of the proposed Transferee;
(iii) A resume of the business background and experience of the
proposed Transferee;
(iv) At least five (5) business references for the proposed
Transferee;
(v) An executed copy of the instrument by which Lessee proposes
to effectuate the Transfer;
(vi) A certified statement, including the calculation, of the
amount of unamortized cost of Lessee's Tenant Improvements to the Leased
Premises.
(b) Lessee shall reimburse Lessor as additional rent for Lessor's
reasonable costs and attorneys' fees incurred in conjunction with the processing
and documentation of any proposed Transfer of the Leased Premises, whether or
not consent is granted.
25.6 Recapture.
(a) Except as provided in Section 25.6(c), by written notice to Lessee
(the "Termination Notice") within twenty (20) business days following submission
to Lessor by Lessee of the information specified in Section 25.5, Lessor: (i)
may terminate this Lease in the event of an assignment of this Lease or sublet
of the entire Leased Premises; or (ii) if such proposed subletting will result
in more than fifty percent (50%) of the entire Leased Premises being sublet (in
the aggregate with any previous subleases), terminate this Lease as to all or
any portion of the Leased Premises. Any termination pursuant to clause (ii)
above shall be subject to the rights of any sublessees under any existing
subleases provided Lessor has previously consented to the sublease in accordance
with the terms of this Lease. In the event Lessor elects to terminate this Lease
as to that portion of the Leased Premises to be sublet, an amendment to this
Lease shall be executed whereby the description of the Leased Premises is
restated and Lessee's obligations for rent and other charges are reduced in
proportion to the reduction in Rentable Area of the Leased Premises caused
thereby.
(b) In the event that Lessor terminates this Lease or terminates this
Lease as to a portion thereof, Lessor may, if it elects, enter into a new lease
covering the Leased Premises or a portion thereof with the intended Transferee
on such terms as Lessor and such Transferee may agree or enter into a new lease
covering the Leased Premises with any other party; in such event, Lessee shall
34
not be entitled to any portion of the profit if any which Lessor may realize on
account of such termination and reletting. From and after the date of such
termination of this Lease, the parties shall have no further obligations to each
other under this Lease except for matters occurring or obligations arising prior
to the date of such termination.
(c) Notwithstanding the provisions of Section 25.6(a), in the event
the Transfer is a part of the sale of Lessee's entire business by way of the
sale of substantially all of the Lessee's assets or Lessee's capital stock, and
Lessor approves the Transfer, Lessor, upon reasonable prior notice and
supporting documentation, agrees to waive its recapture rights specified in
Section 25.6(a) and 25.6(b); however, all other provisions of Section 25 shall
be applicable to such a Transfer including the provisions of Section 25.8.
25.7 Reasonable Restriction. The restrictions on Transfer described in this
Article 25 are acknowledged by Lessee to be reasonable for all purposes,
including, without limitation, the provisions of California Civil Code (the
"Code") Section 1951.4(b)(2). Lessee expressly waives any rights which it might
otherwise be deemed to possess pursuant to applicable law, including, without
limitation, Section 1997.040 of the Code, to limit any remedy of Lessor pursuant
to Section 1951.2 or 1951.4 of the Code by means of proof that enforcement of a
restriction on use of the Leased Premises would be unreasonable.
25.8 Effect of Transfer. If Lessor consents to a Transfer (or if a Transfer
occurs without Lessor's consent in accordance with Section 25.4(b)), the
following conditions shall apply:
(a) Each and every covenant, condition or obligation imposed upon
Lessee by this Lease and each and every right, remedy or benefit afforded Lessor
by this Lease shall not be impaired or diminished as a result of such Transfer.
(b) Lessee shall pay to Lessor, on a monthly basis, seventy percent
(70%) of the excess of any sums of money, or other economic consideration
received by Lessee from the Transferee in such month (whether or not for a
period longer than one month), including higher rent, bonuses, key money, or the
like over the aggregate, of: (i) the Amortized Portion, as defined below, of the
reasonable expenses actually paid by Lessee to unrelated third parties for
brokerage commissions, tenant improvements to the Leased Premises, or design
fees incurred as a direct consequence of the Transfer; and (ii) the total sums
which Lessee pays Lessor under this Lease in such month, or the prorated portion
thereof if the Leased Premises transferred is less than the entire Leased
Premises. The amount so derived shall be paid with Lessee's payment of Minimum
Rent. The term "Amortized Portion" is that portion of the applicable expenses
derived by dividing such expenses by the number of months in the original term
of the Transfer transaction.
(c) No Transfer, whether or not consent of Lessor is required
hereunder, shall relieve Lessee of its primary obligation to pay the rent and to
perform all other obligations to be performed by Lessee hereunder. The
acceptance of rent by Lessor from any proposed Transferee shall not be deemed to
be a waiver by Lessor of any provision of this Lease or to be a consent to any
Transfer of the Leased Premises.
(d) If Lessor consents to a sublease, such sublease shall not extend
beyond the expiration of the Term.
(e) No Transfer shall be valid and no Transferee shall take possession
of the Leased Premises or any part thereof unless, within ten (10) days after
the execution of the documentary evidence thereof, Lessee shall deliver to
Lessor a duly executed duplicate original of the Transfer instrument in form
satisfactory to Lessor which provides that: (i) the Transferee assumes Lessee's
obligations for the payment of rent and for the full and faithful observance and
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performance of the covenants, terms and conditions contained herein; (ii) such
Transferee will, at Lessor's election, attorn directly to Lessor in the event
Lessee's Lease is terminated for any reason on the terms set forth in the
instrument of transfer; and (iii) such instrument of transfer contains such
other assurances as Lessor reasonably deems necessary.
26. ABANDONMENT
26.1 Lessee to Occupy. Lessee shall not abandon the Leased Premises at any
time during the Term, and if Lessee shall abandon, vacate or surrender the
Leased Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Lessee and remaining on the Leased Premises
thereafter shall, at the option of Lessor, be deemed abandoned.
27. ENTRY BY LESSOR
27.1 Rights of Lessor. Lessee shall permit Lessor and Lessor's agents to
enter the Leased Premises at all reasonable times, and upon reasonable prior
notice except in the case of an emergency, for the purpose of inspecting the
same or for the purpose of maintaining the Building and the Lines, systems and
facilities therein, or for the purpose of making repairs, replacements,
alterations or additions to any portion of the Building and the Lines, systems
and facilities therein, including the erection and maintenance of such
scaffolding, canopies, fences and props as may be required, or for the purpose
of posting notices of non-responsibility for alterations, additions or repairs,
or for the purpose of placing upon the Building any usual or ordinary "for sale"
signs, without any rebate of Rent and without any liability to Lessee for any
loss of occupation or quiet enjoyment of the Leased Premises thereby occasioned,
and shall permit Lessor, at any time within ninety (90) days prior to the
expiration of this Lease, to place upon the Leased Premises any usual or
ordinary "to let" or "to lease" signs. This Section in no way affects the
maintenance obligations of the parties hereto.
28. SIGNS
28.1 Lessee shall not place on the Leased Premises or on the Complex, any
exterior signs or advertisements nor any interior signs or advertisements that
are visible from the exterior of the Leased Premises including the Atrium,
without Lessor's prior written consent, which Lessor reserves the right to
withhold for any aesthetic reason in its sole judgment. Lessee's name shall be
included on the Building directory in the main lobby of the Building and in
applicable Common Areas, in accordance with Lessor's Sign Program. The cost of
installation and regular maintenance of any such signs approved by Lessor shall
be at the sole expense of Lessee. At the termination of this Lease, or any
extension thereof, Lessee shall remove all its signs, and all damage caused by
such removal shall be repaired at Lessee's expense. Notwithstanding the
foregoing, Lessor approves Lessee's installation of those signs depicted in
Exhibit K, as well as one flag/flagpole sign above Lessee's door, subject to
Lessor's approval of size and design. Further, subject to governmental approval
and Landlord's approval (which shall not be unreasonably withheld) as to design,
color, and placement, Lessee may install an exterior sign immediately above
Tenant's Xxxxxxxx Street entrance with the approximate dimensions of six (6)
feet wide by two (2) feet in height.
29. DEFAULT
29.1 Definition. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee:
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(a) Any failure by Lessee to pay the rent or to make any other payment
required to be made by Lessee hereunder within three (3) days' of due date;
(b) The abandonment of the Leased Premises by Lessee in violation of
Section 26.1 hereof;
(c) Any failure by Lessee to provide executed documents as and when
required under the provisions of Section 36.2 and/or Article 37;
(d) A failure by Lessee to observe and perform any other provision of
this Lease to be observed or performed by Lessee, where such failure continues
for thirty (30) days after written notice thereof by Lessor to Lessee; provided,
however, that if the nature of the default is such that the same cannot
reasonably be cured within the thirty (30) day period allowed, Lessee shall not
be deemed to be in default if Lessee shall, within such thirty (30) day period,
commence to cure and thereafter diligently prosecute the same to completion;
(e) Either: (i) the appointment of a receiver (except a receiver
appointed at the instance or request of Lessor) to take possession of all or
substantially all of the assets of Lessee; (ii) a general assignment by Lessee
for the benefit of creditors; or (iii) any action taken or suffered by Lessee
under any insolvency or bankruptcy act shall constitute a breach of this Lease
by Lessee. In such event, Lessor may, at its option, declare this Lease
terminated and forfeited by Lessee, and Lessor shall be entitled to immediate
possession of the Leased Premises. Upon such notice of termination, this Lease
shall terminate immediately and automatically by its own limitation;
(f) Any two (2) failures by Lessee to observe or perform any provision
of this Lease during any twelve (12) month period of the Term, as such may be
extended, shall constitute, at the option of Lessor, a separate and noncurable
default.
30. REMEDIES UPON DEFAULT
30.1 Termination and Damages. In the event of any default by Lessee, then
in addition to any other remedies available to Lessor herein or at law or in
equity, Lessor shall have the immediate option to terminate this Lease and all
rights of Lessee hereunder by giving written notice of such intention to
terminate. In the event that Lessor shall elect to so terminate this Lease, then
Lessor may recover from Lessee:
(a) The Worth at the Time of Award, as defined below, of any unpaid
rent which had been earned at the time of such termination; plus
(b) The Worth at the Time of Award of the amount by which the unpaid
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss Lessee proves could have been reasonably
avoided; plus
(c) The Worth at the Time of Award of the amount by which the unpaid
rent for the balance of the Term after the time of award exceeds the amount of
such rental loss that Lessee proves could be reasonably avoided; plus
(d) Any other amount necessary to compensate Lessor for all the
detriment proximately caused by Lessee's failure to perform its obligations
under this Lease or which in the ordinary course of events would be likely to
result therefrom; and
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(e) At Lessor's election, such other amounts in addition to or in lieu
of the foregoing as may be permitted from time to time by the applicable law in
the state in which the Leased Premises are located.
30.2 Definition. As used in subsections 30.1 (a) and (b) above, the "Worth
at the Time of Award" is computed by allowing interest at the rate of ten
percent (10%) per annum. As used in subsection 30.1(c) above, the "Worth at the
Time of Award" is computed by discounting such amount at the discount rate of
the Federal Reserve Bank for the region in which the Complex is located at the
time of award plus one percent (1%).
30.3 Personal Property.
(a) In the event of any default by Lessee, Lessor shall also have the
right, with or without terminating this Lease, to reenter the Leased Premises
and remove all persons and property from the Leased Premises; such property may
be removed and stored in a public warehouse or elsewhere at the cost of and for
the account of Lessee.
(b) In the event of default and Tenant's vacating of the Leased
Premises, all of Lessee's fixtures, furniture, equipment, improvements,
additions, Alterations and other personal property shall, at the option of
Lessor, remain upon the Leased Premises and in that event, and continuing during
the length of such default, Lessor shall have the sole right to take exclusive
possession of such property and to use it, rent or charge free, until all
defaults are cured or, at Lessor's option, at any time during the Term, to
require Lessee to forthwith remove such property.
30.4 Recovery of Rent; Reletting.
(a) In the event of the vacation or abandonment of the Leased Premises
by Lessee or in the event that Lessor shall elect to reenter as provided in
Section 30.3 above, or shall take possession of the Leased Premises pursuant to
legal proceeding or pursuant to any notice provided by law, then if Lessor does
not elect to terminate this Lease as provided in Section 30.1 above, this Lease
shall continue in effect for so long as Lessor does not terminate Lessee's right
to possession, and Lessor may enforce all its rights and remedies under this
Lease, including, without limitation, Lessor's right from, time to time, without
terminating this Lease, to either recover all rental as it becomes due or relet
the Leased Premises or any part thereof for such term or terms and at such
rental or rentals and upon such other terms and conditions as Lessor, in its
sole discretion, may deem advisable, with the right to make Alterations and
repairs to the Leased Premises. Acts of maintenance or preservation or efforts
to relet the Leased Premises or the appointment of a receiver upon initiation of
Lessor or other legal proceeding granting Lessor or its agent possession to
protect Lessor's interest under this Lease shall not constitute a termination of
Lessee's right to possession.
(b) In the event that Lessor shall elect to so relet, then rentals
received by Lessor from such reletting shall be applied: first, to the payment
of any indebtedness other than rent due hereunder from Lessee to Lessor; second,
to the payment of any cost of such reletting; third, to the payment of the cost
of any alterations and repairs to the Leased Premises; fourth, to the payment of
rent due and unpaid hereunder; and the residue, if any, shall be held by Lessor
and applied in payment of future rent as the same may become due and payable
hereunder. Should that portion of such rentals received from such reletting
during any month, which is applied by the payment of rent hereunder, be less
than the rent payable during that month by Lessee hereunder, then Lessee shall
pay such deficiency to Lessor immediately upon demand therefor by Lessor. Such
deficiency shall be calculated and paid monthly. Lessee shall also pay to
Lessor, as soon as ascertained, any costs and expenses incurred by Lessor in
such reletting or in making such alterations and repairs not covered by the
rentals received from such reletting.
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(c) No reentry or taking possession of the Leased Premises or any
other action under this Section shall be construed as an election to terminate
this Lease unless a written notice of such intention be given to Lessee or
unless the termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any reletting without termination by Lessor because of any
default by Lessee, Lessor may at any time after such reletting elect to
terminate this Lease for any such default.
(d) Lessor has the remedy described in California Civil Code Section
1951.4 (Lessor may continue Lease in effect after Lessee's breach and
abandonment and recover rent as it becomes due, if Lessee has right to sublet or
assign, subject only to reasonable limitations).
30.5 No Waiver. Efforts by Lessor to mitigate the damages caused by
Lessee's default in this Lease shall not constitute a waiver of Lessor's right
to recover damages hereunder, nor shall Lessor have any obligation to mitigate
damages hereunder.
30.6 Curing Defaults. Should Lessee fall to repair, maintain, keep clean,
and/or service the Leased Premises, or any part or contents thereof at any time
or times, or perform any other obligations imposed by this Lease or otherwise,
then after having given Lessee reasonable notice of the failure or failures and
a reasonable opportunity which in no case shall exceed thirty (30) days, to
remedy the failure, Lessor may enter upon the Leased Premises and perform or
contract for the performance of the repair, maintenance, or other Lessee
obligation, and Lessee shall pay Lessor for all direct and indirect costs
incurred in connection therewith within thirty (30) days of receiving a xxxx
therefor from Lessor.
30.7 No Right to Cure. Notwithstanding anything to the contrary set forth
in Section 29.1 above, Lessee shall be deemed to have committed a material
default and breach of this Lease, without any right on Lessee's part to cure
such default and breach, upon the failure by Lessee to observe and perform the
provisions of any one or more of the following Sections (or indicated portions
thereof) of this Lease: 15.1 (first sentence), 25.3, 27.1, 36.2, 37.1, and 37.2.
30.8 Cumulative Remedies. The various rights, options, election powers, and
remedies of Lessor contained in this Article and elsewhere in this Lease shall
be construed as cumulative and no one of them exclusive of any others or of any
legal or equitable remedy which Lessor might otherwise have in the event of
breach or default, and the exercise of one right or remedy by Lessor shall not
in any way impair its right to any other right or remedy.
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31. BANKRUPTCY
31.1 Bankruptcy Events. If at any time during the Term there shall be filed
by or against Lessee in any court pursuant to any statute either of the United
States or of any state, commonwealth, district or territory thereof a petition
in bankruptcy or insolvency or for reorganization or for the appointment of a
receiver or trustee of all or a portion of Lessee's property or estate, or if a
receiver or trustee takes possession of any of the assets of Lessee, or if the
leasehold interest herein passes to a receiver, or if Lessee makes an assignment
for the benefit of creditors or petitions for or enters into an arrangement (any
of which are referred to herein as a "Bankruptcy Event"), then the following
provisions shall apply:
(a) Upon the occurrence of a Bankruptcy Event, or if Lessee takes
advantage of any insolvency laws of any state, district, commonwealth or
territory of the United States, then in any such event Lessor at its option and
sole discretion may terminate this Lease at any time by written notice to Lessee
(subject, however, to applicable provisions of the applicable bankruptcy federal
or state statutes or any insolvency laws during the pendency of any action
thereunder involving Lessee as the subject debtor). If this Lease is terminated
under this Article: (i) Lessee agrees to immediately surrender and vacate the
Leased Premises, waives all statutory or other notice to quit, and agrees that
Lessor's obligations under this Lease shall cease from such termination date;
and (ii) Lessor may recover possession by process of law or in any other lawful
manner. Furthermore, if this Lease terminates under this Section (a), Lessor
shall, subject to the Bankruptcy Code, have all rights and remedies against
Lessee as provided in this Lease and at law for a default of Lessee in the
payment of Minimum Rent, Percentage Rent, if any, and/or additional Rent. Lessee
hereby acknowledges that it shall have abandoned all of its personal property
remaining in the Leased Premises after Lessee surrenders possession of the
Leased Premises, and Lessee hereby authorizes Lessor to dispose of such personal
property in any manner Lessor deems appropriate without accounting to governs or
shall govern the proceedings in which such damages are to be proved limits or
shall limit the amount of such claim capable of so being proved, in which case
Lessor shall be entitled to prove as and for liquidated damages an amount equal
to that allowed by or under any such statute. When calculating damages
hereunder, Lessor shall be entitled to recover the amount of any "free rent" or
other concessions extended by Lessor and received by Lessee prior to the
premature expiration of this Lease, it being agreed by Lessee that such "free
rent" and concessions were contingent upon Lessee fulfilling its obligations for
the entire term of this Lease. The provisions of this paragraph shall be without
prejudice to (i) Lessor's right to prove in full damages for Minimum Rent,
Percentage Rent, if any, and additional Rent accrued prior to the termination of
this Lease, but not paid, and (ii) any rights given to Lessor by any pertinent
statute to prove any amounts allowed thereby. In making any such computation,
the then cash rental value of the Leased Premises shall be deemed prima facie to
be the rental realized upon any reletting, if such reletting can be accomplished
by Lessor within a reasonable time after such termination of this Lease, and the
then present cash value of the future rents hereunder reserved to Lessor for the
unexpired portion of the Lease Term hereby demised shall be deemed to be such
sum, if invested at the then current passbook account rate offered by Xxxxx
Fargo Bank, N.A. at its main office in San Francisco, as will produce the future
rent over the period of time in question. Lessor and Lessee further agree that
in making any computation of damages for Lessee holding over after the
termination of this Lease, Lessor may claim damages based on the Minimum Rent,
Percentage Rent, if any, and additional Rent provided herein for the period of
such hold over, it being agreed that the Minimum Rent, Percentage Rent, if any,
and additional Rent constitutes the fair rental value of the Leased Premises
during the hold over period.
(i) Notwithstanding subsection (h) of this Article 31, Lessor
specifically reserves any and all remedies available to Lessor in Article 30
hereof or at law or in equity in respect of a Bankruptcy Event to the extent
such remedies are permitted by law.
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32. SURRENDER OF LEASE
32.1 No Merger. The voluntary or other surrender of this Lease by Lessee,
or a mutual cancellation thereof, shall not work as a merger, and shall, at the
option of Lessor, terminate all or any existing subleases or subtenancies, or
may, at the option of Lessor, operate as an assignment to it of any or all such
subleases or subtenancies.
33. LESSOR'S EXCULPATION
33.1 Limited Liability. In the event of default, breach, or violation by
Lessor (which term includes Lessor's partners, co-venturers, co-tenants,
officers directors, trustees, employees, agents, representatives, successors or
assigns) of any of Lessor's obligations under this Lease, Lessor's liability to
Lessee shall be limited to its ownership interest in the Leased Premises (or its
interest in the Complex, if applicable) or the proceeds of a public sale of such
interest pursuant to foreclosure of a judgment against Lessor. Lessor may, at
its option, and among its other alternatives, relieve itself of all liability
under this Lease by conveying the Leased Premises to Lessee. Notwithstanding any
such conveyance, Lessee's leasehold and ownership interest shall not merge.
33.2 No Recourse. Lessor (as defined in Section 33.1) shall not be
personally liable for any deficiency beyond its interest in the Leased Premises.
All personal liability of all trustees, their employees, agents or
representatives, is expressly waived by Lessee.
34. ATTORNEYS' FEES
34.1 Actions, Proceedings, etc. Lessee hereby agrees to pay, as additional
rent, all attorneys' fees and disbursements, and all other court costs or
expenses of legal proceedings or other legal services which Lessor may incur or
pay out by reason of, or in connection with:
(a) Any appearance by Lessor (or any officer, partner, or employee of
Lessor) as a witness or otherwise in any action or proceeding whatsoever
involving or affecting Lessee or this Lease except as otherwise covered by
Section 34.3;
(b) Any assignment, sublease, or leasehold mortgage proposed or
granted by Lessee (whether or not permitted under this Lease), and all
negotiations with respect thereto; and
(c) Any Alteration of the Leased Premises by Lessee, and all
negotiations with respect thereto.
34.2 Survival. Lessee's obligations under this Section shall survive the
expiration or any other termination of this Lease. This Section is intended to
supplement (and not to limit) other provisions of this Lease pertaining to
indemnities and/or attorneys' fees.
34.3 Attorneys' Fees. If there is any legal action or proceeding (including
arbitration other than the Arbitration of Fair Market Rental described in
Section 4.3) between Lessor and Lessee arising out of any default by Lessee or
Lessor in the observance or performance of any obligation under this Lease or to
enforce this Lease or to protect or establish any right or remedy under this
Lease, the unsuccessful party to such action or proceeding shall pay to the
prevailing party all costs and expenses, including reasonable attorneys' fees
and disbursements, incurred by such prevailing party in such action or
proceeding and in any appeal in connection therewith. If such prevailing party
recovers a judgment in any such action or proceeding (including arbitration) or
appeal thereon, such costs, expenses and attorneys' fees and disbursements shall
be included in and as a part of such judgment.
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35. NOTICES
35.1 Writing. All Notices (as defined below), demands and requests required
or permitted to be given or made under any provision of this Lease shall be in
writing and shall be given or made by (i) personal service, or (ii) by telephone
facsimile upon which date and time are imprinted in the course of transmission
to the number indicated in Section 1.2, or (iii) by mailing same by registered
or certified mail, return receipt requested, postage prepaid, or (iv) by
reputable courier which provides written evidence of delivery, addressed to the
respective party at the address set forth in Section 1.2 of this Lease or at
such other address as the party may from time to time designate, by a written
Notice, as defined below, sent to the other in the manner aforesaid.
35.2 Effective Date. Any such Notice, demand or request ("Notice") shall be
deemed given or made on the third day after the date so mailed. Notwithstanding
the foregoing, Notice given by personal delivery to the party at its address as
aforesaid shall be deemed given on the day on which delivery is made. Notice
given by a reputable courier service which provides written evidence of delivery
shall be deemed given on the business day immediately following deposit with the
courier service.
35.3 Authorization to Receive. Each person and/or entity whose signature is
affixed to this Lease as Lessee or as guarantor of Lessee's obligations
("Obligor") designates such other Obligor its agent for the purpose of receiving
any Notice pertaining to this Lease or service of process in the event of any
litigation or dispute arising from any obligation imposed by this Lease.
36. SUBORDINATION
36.1 Priority of Encumbrances. This Lease shall be subject and subordinate
at all times to any and all ground leases and the lien of any and all mortgages
and deeds of trust securing any amount or amounts whatsoever which may now exist
or hereafter be placed on or against or encumbering the Building or on or
against or encumbering Lessor's interest or estate therein ("Superior Leases and
Mortgages"), all without the necessity of having further instruments executed by
Lessee to effect such subordination; provided however; (i) with respect to that
certain deed of trust encumbering the Building of record as of the date of this
Lease in favor of Xxxxx Fargo Bank (the "Bank"), Lessor covenants to use
commercially reasonable efforts (without any requirement to pay any fees to said
lender or to initiate litigation) to cause the Bank to execute and deliver on or
before the Delivery Date a non-disturbance agreement in the form attached hereto
as Exhibit I, attached hereto, in favor of Lessee; and (ii) with respect to any
Superior Leases and Mortgages encumbering the Building after the date of this
Lease, Lessee shall execute a subordination agreement in the form of Exhibit I,
provided that the subordination of this Lease shall be conditioned upon such
Lessor's mortgagee executing a non-disturbance agreement in favor of Lessee on
the current form used by such lender. In the event of a foreclosure of any such
mortgage or deed of trust or of any other action or proceeding for the
enforcement thereof, or of any sale thereunder or in the event of a termination
of any such ground lease, this Lease shall not be terminated or extinguished,
nor shall the rights and possession of Lessee hereunder be disturbed, if no
default then exists under this Lease, and Lessee shall attorn to the person who
acquires Lessor's interest hereunder through any such mortgage or deed of trust.
36.2 Execution of Documents. Lessee agrees to execute any commercially
reasonable documents required to effectuate such subordination or to make this
Lease prior to the lien of any mortgage, deed of trust or ground lease, as the
case may be, and failing to do so within ten (10) business days after written
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demand, does hereby make, constitute and irrevocably appoint Lessor as Lessee's
attorney-in-fact and in Lessee's name, place and stead, to do so. It is
understood by all parties that Lessee's failure to execute the subordination
documents referred to above may cause Lessor serious financial damage by causing
the failure of a financing or sale transaction.
36.3 Attornment. Lessee shall attorn to any purchaser at any foreclosure
sale, or to any grantee or Transferee designated in any Deed given in lieu of
foreclosure.
37. ESTOPPEL CERTIFICATES
37.1 Execution by Lessee. Within ten (10) business days of request therefor
by Lessor, Lessee shall execute a written statement ("Estoppel Certificate")
acknowledging the commencement and termination dates of this Lease, that it is
in full force and effect, has not been modified (or if it has, stating such
modifications) and providing any other pertinent information as Lessor or its
agents might reasonably request. Failure to comply with this Article shall be a
material breach of this Lease by Lessee giving Lessor all rights and remedies
under Article 30 hereof, as well as a right to damages caused by the loss of a
loan or sale which may result from such failure by Lessee. A copy of the
Estoppel Certificate required by Lessor's lender and required to be executed by
Lessee is attached hereto as Exhibit L.
37.2 Financing, Sale or Transfer. If Lessor desires to finance, refinance,
sell, ground lease or otherwise transfer the Leased Premises, or any part
thereof, or the Building, Lessee hereby agrees, within ten (10) business days of
request therefor by Lessor, to deliver to any lender or to any prospective
buyer, ground lessor or other Transferee designated by Lessor such financial
statements of Lessee, its Guarantor and its parent company, if any, as may be
reasonably required by such party. Such statements shall include the past three
(3) years' financial statements of Lessee. All such financial statements shall
be received by Lessor in confidence and shall be used only for the purposes
herein set forth.
38. WAIVER
38.1 Effect of Waiver. The waiver by Lessor of any breach of any Lease
provision shall not be deemed to be a waiver of such Lease provision or any
subsequent breach of the same or any other term, covenant or condition therein
contained. The subsequent acceptance of rent hereunder by Lessor shall not be
deemed to be a waiver of any preceding breach by Lessee of any provision of this
Lease, other than the failure of Lessee to pay the particular rental so
accepted, regardless of Lessor's knowledge of such preceding breach at the time
of acceptance of such rent.
39. HOLDING OVER
39.1 Month-to-Month Tenancy on Acceptance. If Lessee should remain in
possession of the Leased Premises after the expiration of the Term and without
executing a new Lease, then, upon acceptance of rent by Lessor, such holding
over shall be construed as a tenancy from month-to-month, subject to all the
conditions, provisions and obligations of this Lease as existed during the last
month of the Term hereof, so far as applicable to a month-to-month tenancy,
except that the Minimum Rent shall be equal to one hundred fifty percent (150%)
of the Minimum Rent payable immediately prior to the expiration or sooner
termination of the Lease.
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40. SUCCESSORS AND ASSIGNS
40.1 Binding Effect. The covenants and conditions herein contained shall,
subject to the provisions as to assignment, apply to and bind the heirs,
successors, executors, administrators and assigns of all of the parties hereto;
and all of the parties hereto shall be jointly and severally liable hereunder.
41. TIME
41.1 Time of the Essence. Time is of the essence of this Lease with respect
to each and every article, section and subsection hereof.
42. EFFECT OF LESSOR'S CONVEYANCE
42.1 Release of Lessor. If, during the Term, Lessor shall sell its interest
in the Building or Complex of which the Leased Premises form a part, or the
Leased Premises, then from and after the effective date of the sale or
conveyance, Lessor shall be released and discharged from any and all obligations
and responsibilities under this Lease, except those already accrued.
43. COMMON AREAS
43.1 Lessor shall, in Lessor's sole discretion, maintain the Common Areas
(subject to reimbursement pursuant to Article 8 hereof), establish and enforce
reasonable rules and regulations concerning such areas, close any of the Common
Areas to whatever extent required in the opinion of Lessor's counsel to prevent
a dedication of any of the Common Areas or the accrual of any rights of any
person or of the public to the Common Areas, close temporarily any of the Common
Areas for maintenance purposes and make changes to the Common Areas including,
without limitation, changes in the location of driveways, corridors, entrances,
exits, vehicular parking spaces, parking area, the designation of areas for the
exclusive use of others, the direction of the flow of traffic or construction of
additional buildings thereupon. Lessor may provide security for the Common Areas
but is not obligated to do so.
44. TRANSFER OF SECURITY
44.1 Transfer to Purchaser. If any security be given by Lessee to secure
the faithful performance of all or any of the covenants of this Lease on the
part of Lessee, Lessor may transfer and/or deliver the security, as such, to the
purchaser of the reversion, in the event that the reversion be sold, and
thereupon Lessor shall be discharged from any further liability in reference
thereto.
45. LATE CHARGES
45.1 Late Payment by Lessee. Lessee acknowledges that late payment by
Lessee to Lessor of rent or any other payment due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of such costs being
extremely difficult and impractical to fix. Such costs include, without
limitation, processing and accounting charges, and late charges that may be
imposed on Lessor by the terms of any encumbrance and note secured by any
encumbrance covering the Leased Premises. Therefore, if any installment of rent,
or any other payment due hereunder from Lessee is not received by Lessor within
five (5) days of due date, Lessee shall pay to Lessor an additional sum of five
percent (5%) of such rent or other charge as a late charge. The parties agree
that this late charge represents a fair and reasonable estimate of the cost that
Lessor will incur by reason of late payment by Lessee. Acceptance of any late
charge shall not constitute a waiver of Lessee default with respect to the
overdue amount, or prevent Lessor from exercising any other rights or remedies
available. to Lessor.
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46. CORPORATE AUTHORITY
46.1 Authorization to Execute. Lessee represents and warrants that each
individual executing this Lease is duly authorized to execute and deliver this
Lease on behalf of said corporation in accordance with a duly adopted resolution
of the Board of Directors of said corporation or in accordance with the Bylaws
of said corporation, and that this Lease is binding upon said corporation in
accordance with its terms. Further, Lessee shall, within thirty (30) days after
execution of this Lease, deliver to Lessor a certified copy of a resolution of
the Board of Directors of said corporation authorizing or ratifying the
execution of this Lease.
47. MORTGAGEE PROTECTION
47.1 Notice and Right to Cure Default. Lessee agrees to give any
mortgagee(s) and/or trust deed holders, by registered mail, a copy of any notice
of default served upon Lessor, provided that prior to such notice Lessee has
been notified, in writing (by way of Notice of Assignment of Rents and Leases,
or otherwise), of the address of such mortgagees and/or trust deed holders.
Lessee further agrees that if Lessor shall have failed to cure such default
within the time provided for in this Lease, then the mortgagees and/or trust
deed holders shall have an additional thirty (30) days within which to cure such
default or, if such default cannot be cured within that time, then such
additional time as may be necessary if, within such thirty (30) days, any
mortgagee and/or trust deed holder has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary to effect such cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
48. MISCELLANEOUS PROVISIONS
48.1 Captions. The captions of this Lease are for convenience only and are
not a part of this Lease and do not in any way limit or amplify the terms and
provisions of this Lease.
48.2 Number and Gender. Whenever the singular number is used in this Lease
and when required by the context, the same shall include the plural, the plural
shall include the singular, and the masculine gender shall include the feminine
and neuter genders, and the word "person" shall include corporation, firm or
association. If there be more than one Lessee, the obligations imposed under
this Lease upon Lessee shall be joint and several.
48.3 Modifications. This instrument contains all of the agreements,
conditions and representations made between the parties to this Lease and may
not be modified orally or in any other manner than by an agreement in writing
signed by all of the parties to this Lease.
48.4 Payments. Except as otherwise expressly stated, each payment required
to be made by Lessee shall be in addition to and not in substitution for other
payments to be made by Lessee.
48.5 Severability. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
48.6 No Offer. The preparation and submission of a draft of this Lease by
either party to the other shall not constitute an offer, nor shall either party
be bound to any terms of this Lease or the entirety of the Lease itself until
both parties have fully executed a final document and an original signature
document has been received by both parties. Until such time as described in the
previous sentence, either party is free to terminate negotiations with no
obligation to the other.
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48.7 Disputed Sums. Under the terms of this Lease numerous charges are and
may be due from Lessee to Lessor including, without limitation, Operating Costs,
Real Estate Taxes and other items of a similar nature including advances made by
Lessor in respect of Lessee's default at Lessor's option. In the event that at
any time during the Term there is a bona fide dispute between the parties as to
the amount due for any of such charges claimed by Lessor to be due, the amount
demanded by Lessor shall be paid by Lessee until the resolution of the dispute
between the parties or by litigation. Failure by Lessee to pay the disputed sums
until resolution shall constitute a default under the terms of the Lease.
48.8 Lessee's Remedies. Notwithstanding anything to the contrary contained
in this Lease, if any provision of this Lease expressly or impliedly obligates
Lessor not to unreasonably withhold its consent or approval, an action for
declaratory judgment or specific performance will be Lessee's sole right and
remedy in any dispute as to whether Lessor has breached such obligation.
48.9 Light, Air and View. No diminution of light, air, or view by any
structure which may hereafter be erected (whether or not by Lessor) shall
entitle Lessee to any reduction of Rent, result in any liability of Lessor to
Lessee, or in any other way affect this Lease or Lessee's obligations hereunder.
48.10 Public Transportation Information. Lessee shall establish and
maintain during the Term hereof a program to encourage maximum use of public
transportation by personnel of Lessee employed on the Leased Premises,
including, without limitation, the distribution to such employees of written
materials explaining the convenience and availability of public transportation
facilities adjacent or proximate to the Complex, staggering working hours of
employees, and encouraging use of such facilities, all at Lessee's sole
reasonable cost and expense. Lessee shall comply with all requirements of any
local transportation management ordinance.
48.11 Rules and Regulations. Lessee agrees to comply with all reasonable
rules and regulations adopted and promulgated by Lessor and applicable to all
tenants in the Complex for the lawful, orderly, clean, safe, aesthetic, quiet,
and beneficial use, operation, maintenance, management, and enjoyment of the
Complex. Lessor shall have no liability for violation by any other lessee in the
Complex of any rules or regulations, nor shall such violation or waiver thereof
excuse Lessee from compliance. The initial rules and regulations concerning the
Complex are attached hereto as Exhibit X. Xxxxxx reserves the right to make
additional rules affecting the Complex throughout the Term hereof. All delivery
and dispatch of supplies, fixtures, equipment and furniture shall be by means
and during hours established by Lessor. Lessee shall not at any time park its
trucks or other delivery vehicles in the Common Areas, except in such parts
thereof as from time to time designated by Lessor.
48.12 Joint and Several Liability. Should Lessee consist of more than one
person or entity, they shall be jointly and severally liable on this Lease.
48.13 Survival of Obligations. All obligations of Lessee which may accrue
or arise during the Term or as a result of any act or omission of Lessee during
said Term shall, to the extent they have not been fully performed, satisfied or
discharged, survive the expiration or termination of this Lease.
48.14 Real Estate Brokers. Lessor and Lessee each represents and warrants
to the other party that it has not authorized or employed, or acted by
implication to authorize or employ, any real estate broker or salesman to act
for it in connection with this Lease other than the real estate brokers
specified in Section 1.10. Lessor shall pay the commission due Lessor's broker
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and Lessee's broker pursuant to a separate agreement between Lessor and Lessor's
broker. Lessor and Lessee shall each indemnify, defend and hold the other party
harmless from and against any and all claims by any real estate broker or
salesman whom the indemnifying party authorized or employed, or acted by
implication to authorize or employ, to act for the indemnifying party in
connection with this Lease.
48.15 Nonliability of Lessor for Approvals. Except as may otherwise be
expressly stated by a provision of this Lease, and only to the extent so stated,
the consent or approval, whether express or implied, or the act, failure to act
or failure to object, by Lessor in connection with any plan, specification,
drawing, proposal, request, act, omission, notice or communication (collectively
"Act") by or for, or prepared by or for, Lessee, shall not create any
responsibility or liability on the part of Lessor, and shall not constitute a
representation by Lessor, with respect to the completeness, sufficiency,
efficacy, propriety, quality or legality of such Act.
48.16 Interest On Past Due Amounts. If any sum due Lessor from Lessee is
not received by Lessor within five (5) calendar days after the date such sum is
due and payable, such sum shall bear interest from the due date until paid by
Lessee at the rate of two percent (2%) above the Prime Rate (as herein defined),
not to exceed the maximum rate of interest allowed by law in the state where the
Leased Premises are located, and such interest shall be deemed to be additional
rent. "Prime Rate" means the Prime Rate of interest as quoted in the Wall Street
journal on the date such sum was due and payable.
48.17 Counterparts. This Lease may be executed in one or more counterparts,
each of which shall be deemed an original, and all taken together shall
constitute one and the same instrument.
49. WAIVER OF CALIFORNIA CODE SECTIONS
49.1 Waiver by Lessee. In this Lease, numerous provisions have been
negotiated by the parties, some of which provisions are covered by statute.
Whenever a provision of this Lease and a provision of any statute or other law
cover the same matter, the provisions of this Lease shall control. Therefore,
Lessee waives (for itself and all persons claiming under Lessee) the provisions
of Civil Code Sections 1932(2) and 1933(4) with respect to the destruction of
the Leased Premises; Civil Code Sections 1941 and 1942 with respect to Lessor's
repair duties and Lessee's right to repair; Civil Code Section 1995.310,
granting to a tenant all remedies provided by law for breach of contract
(including, without limitation, the right to contract damages and the right to
terminate the lease) in the event that the Lessor unreasonably withholds consent
to a transfer in violation of the Lessee's rights under tKe lease; Code of Civil
Procedure Section 1265.130, allowing either party to petition the Superior Court
to terminate this Lease in the event of a partial taking of the Leased Premises
by Condemnation as herein defined; and any right of redemption or reinstatement
of Lessee under any present or future case law or statutory provision (including
Code of Civil Procedure Sections 473 and 1179 and Civil Code Section 3275) in
the event Lessee is dispossessed from the Leased Premises for any reason. This
waiver applies to future statutes enacted in addition to or in substitution for
the statutes specified herein.
50. SHUTTLE SERVICE
50.1 Lessor presently maintains for the benefit of Lessee's employees at
the Leased Premises, a van shuttle service which shall operate Monday through
Friday from 7:00 a.m. to 7:00 p.m. with not less than one van vehicle operating
throughout the day and two vehicles operating during peak commute hours of 7:00
a.m. to 9:00 a.m. Monday through Friday and 5:00 p.m. to 7:00 p.m. Monday
through Friday. The shuttle will serve the major transportation centers of San
Francisco, i.e., the Transbay Terminal, BART, the nearest Municipal Railway
stop, the Ferry Building and CalTrain Terminal. Lessor may terminate the shuttle
service if the City of San Francisco is, in Lessor's reasonable judgment, then
47
providing adequate public transportation to the area of the Building and no
longer requires that Lessor provide such shuttle service. At Lessee's option,
Lessee's employees may use the shuttle service subject to a reasonable fee to be
mutually agreed upon between Lessor and Lessee.
50.2 Parking. Lessee may lease on a monthly basis up to the number of
parking spaces described in Section 1.12 in the parking facility of the Complex.
Said parking spaces shall be on a non-exclusive, non-reserved basis. Lessee
shall pay a parking fee for each parking space which Lessee leases at the same
monthly rates as are established from time to time by Lessor or the owner or
operator of the parking facility. The use by Lessee, its employees or other
users of such parking space shall be subject to the rules and regulations
established from time to time by Lessor, or the owner or operator of the parking
facility. If Lessee has not leased the number of parking spaces to which it is
entitled within three (3) months after the Commencement Date, or if at any time
thereafter, Lessee releases any parking spaces or if parking spaces to which
Lessee is entitled under this Section 50.2 exceeds the parking spaces actually
leased by Lessee, Lessee shall have no further right or entitlement to such
parking spaces and Lessor may permit others to use or lease such parking spaces
on a long or short term basis. If Lessor or the owner or operator of the parking
facility changes the parking arrangements in the parking facility, then Lessee's
rights under this Section 50.2 shall be subject to modification to reflect such
change, so long as Lessee is not disproportionately prejudiced by such changes
as compared to other lessees of the Building.
50.3 Retail Parking. Lessee's customers would be guided to Lessor's
designated temporary parking on the roof of the Building. Lessee may purchase
for the use of its customers a validation stamp from the garage vendor. Lessor
would work with Lessee to obtain "green zone" parking in front of the Xxxxxxxx
Street retail area.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease as of the
day and year first written above.
LESSOR: LESSEE:
ZORO LLC METRO COMMERCE BANK,
a California limited liability company a California corporation
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx X Xxxxxxx
---------------------------------- ----------------------------------
Its Managing Member Its Executive Vice President
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EXHIBIT A
LEGAL DESCRIPTION
The land referred to herein is situated in the State of California, County of
San Francisco, City of San Francisco, and is described as follows:
PARCEL ONE:
ALL OF XXX 0, Xxxxxxxx'x Xxxxx 0000, as shown on that certain Map entitled,
"Parcel Map of a portion of 000 Xxxx Xxxxx Xx. 000, also being a portion of
Assessor's Block No. 3783 which Map was filed for record in the Office of the
Recorder of the City and County of San Francisco, State of California, on
November 29, 1988 in Book 38 of Parcel Maps, at Page 36.
PARCEL TWO:
Non-exclusive easements as set forth in that certain Grant of Easement with
Covenants and Restrictions affecting land dated as of December 29, 1988 by and
between Bay West Showplace Investors, a California Limited Partnership, and
Portman/Bay West Apparel Partners, a California Partnership, recorded on
December 30, 1988 in Book E775 at Page 1598, Series No. E296406 in the Official
Records.
APN: Xxx 000, Xxxxx 0000
COMMON KNOWN AS:
000 Xxxxxxxx Xxxxxx
XXX XXXXXXXXX, XX
